Unit 9 - Rules in relation to examination of witness (unit 13 BSB) Flashcards
1
Q
Examination-in-chief is the examination of a witness by the party calling him or her and its object is to elicit from the witness evidence supportive of the party’s case
A
Examination-in-chief must be conducted in accordance with the exclusionary rules of general application, such as those relating to hearsay, opinion and the character of the accused.
2
Q
Rules governing examination-in-chief, relating to:
o Calling of evidence before the close of one’s case
o Leading questions
o Refreshing the memory
o Previous complaints
o Evidence of previous identification and description
o Previous consistent or self-serving statements
o Previous inconsistent statements
o Impeaching the credit of one’s own witness
A
3
Q
Leading qestions- EIC =
A
questions should be NON-LEADING
‘Leading question’ = framed in such a way as to suggest an answer sought, or to assume existence of facts yet to be established
4
Q
EIC
Are evidence elicited by leading questions is inadmissible?
A
NO
but the weight to be attached to it may be substantially reduced
5
Q
Exceptions when leading questions may be allowed during EIC:
A
1) MAY be allowed at discretion of judge in the INTERESTS OF JUSTICE
E.g. if a magistrate dies in course of a case; witness is recalled before a new magistrate; he can be asked whether his deposition represents his evidence
2) May be allowed on Issues NOT in DISPUTE
o Formal & introductory matters (such as a witness’s name, address, occupation);
o Questions re other relevant facts not in dispute
3) May be allowed if the party calling him or her has been given leave to treat the witness as hostile
6
Q
Memory refreshing
a witness, in the course of giving evidence, may refer to a document in order to refresh his or her memory on two conditions:
A
(1) that the witness gives evidence that the document records his or her recollection at the time it was made and
(2) that his or her recollection at that time is likely to have been significantly better than at the time of the oral evidence.
7
Q
Memory refreshing
Where previous recollection is a sound recording =
A
can fresh memory from a
transcript of a sound recording
8
Q
Memory refresh: court discretion:
A
Judge has a residual discretion to refuse an application to refresh, even if the 2 conditions are met
9
Q
CRIMINAL JUSTICE ACT 2003, S. 120
[THE LAW]
A
(1) A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—
(a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
(b) 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.
(2) Where— he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.
(a) a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at the time,
(b) his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and
(c) a transcript has been made of the sound recording,
10
Q
Who makes an application for witness to refresh memory:
A
An application to refresh will normally be made by an advocate; BUT judge should suggest a witness refresh his memory where the interests of justice demand it.
11
Q
When can a witness refresh their memory:
A
‘at any stage’ in the course of giving oral evidence
during EIC and re-examination
12
Q
Memory refresh
‘document’ means anything in which information of any description is recorded,
NOT=
A
any recording of sounds or moving images
13
Q
Memory refresh
More info about the document:
A
- must: have been prepared by the witness himself; OR
- prepared by another if witness VERIFIED the document
14
Q
Memory refresh
Witness may refresh memory from:
A
(a) his deposition OR
(b) a statement to police taken down by a police officer and then read over by the maker
15
Q
Refreshing Memory out of court, prior to going into the witness-box
A
The 2 conditions re refreshing memory whilst giving evidence in witness box do not apply to refreshing memory from a statement before going into the witness-box.
There is NO general rule that witnesses may not before trial see the statements which they made some period reasonably close to the time of events which are the subject of the trial.
16
Q
Memory refresh:
‘Witnesses are entitled to refresh their memory from their statement or visually recorded interview’.
In regards, to visually recorded interview =
no requirement that the witness watch the interview at the same time as the court
if the viewing takes place at a different time, the witness, before being questioned under cross-examination =
A
should normally be asked if and when the recording was watched
17
Q
Observations re Refreshing Memory out of court:
A
(a) witnesses for the prosecution are normally entitled, if they so request, to copies of any statements taken from them by police officers.
(b) witnesses for the defence are normally allowed to have copies of their statements, and refresh memories before going into the witness-box.
(c) testimony in witness-box becomes more a test of memory than truthfulness if witnesses are deprived of the opportunity of checking their recollection by reference to statements/notes made at time closer to the events;
(d) refusal of access to statements would create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.
(e) would obviously be wrong if several witnesses were handed statements
in circumstances which enabled one to compare with another what each had said.
18
Q
witnesses discussing the case with others
A
it is incumbent on prosecuting authorities and judges to ensure that witnesses are informed that they should not discuss cases in which they are involved
General rule = discussions between witnesses, particularly just before going into court to give evidence, should not take place, nor should statements or proofs of evidence be read to witnesses in each other’s presence
19
Q
General rule = discussions between witnesses, particularly just before going into court to give evidence, should not take place, nor should statements or proofs of evidence be read to witnesses in each other’s presence
if this has happened then
A
each case must be dealt with on its own facts
If it emerges in cross-exam that the discussion may have led to fabrication, court may decide
A) would be unsafe to leave any of that evidence to the jury;
B) in other cases it may suffice to direct the jury on the implications which such conduct might have for reliability of the evidence
20
Q
Witness withdrawing from the witness-box to re-read statement
A
In some cases it may be appropriate for the witness to withdraw from the witness-box and read the statement in peace
if witness is dyslexic + cannot read an earlier statement = the witness may be given the opportunity of adopting it by having counsel read it out in the absence of the jury
21
Q
Cross-examination on Memory-refreshing Document
If a witness has refreshed his or her memory out of court and before entering the witness-box, counsel for the other side is entitled to:
A
a) to inspect the memory-refreshing document
b) to cross-examine the witness upon the relevant matters contained therein.
22
Q
an important exception to both the rule against hearsay and the rule against previous consistent statements =
A
In the case of a witness’s previous complaint
23
Q
Under the statutory provisions, the witness’s complaint, whether oral or written, is admissible subject to a number of conditions, principally:
A
A) that the witness testifies that to the best of his or her belief he or she made the statement and it is true;
B) that the witness claims that an offence was committed against him or her;
C) that the offence is one to which the proceedings relate;
D) and that the complaint is about conduct which would, if proved, constitute the offence or part of it.
24
Q
Witness complaint
Common Law Principle is that:
A
the quicker that someone complains about an allegation,
= the more likely complaint is to be reliable (‘doctrine of recent complaint’) –
Made somewhat redundant by the statue which is wider
25
CRIMINAL JUSTICE ACT 2003, S. 120
[ THE LAW]
1)†††† This section applies where a person (the witness) is called to give evidence in criminal proceedings. …
† …
(4)†††† A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—
† (a)†††† any of the following three conditions is satisfied, and
† (b)†††† while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.
† …
(7)†††† The third condition is that—
† (a)†††† the witness claims to be a person against whom an offence has been committed,
† (b)†††† the offence is one to which the proceedings relate,
† (c)†††† the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
† …
† (e)†††† the complaint was not made as a result of a threat or a promise, and
† (f)†††† before the statement is adduced the witness gives oral evidence in connection with its subject matter.
(8)†††† For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.
26
CRIMINAL JUSTICE ACT 2003, S. 120
IN SUMMARY =
S120 CJA 2003 outlines that Previous Complaints, whether oral or written, is
admissible IF:
1) he testifies that, to best of his belief, he
a) made the statement and
b) that it is true;
2) he claims that an offence was committed against him;
3) the offence is one to which the proceedings relate [[i.e. is on the indictment]] (so doesn’t apply to a statement made by a victim of an offence if that offence is not on the indictment)
4) the complaint is about such conduct which would, if proved, constitute the offence or part of it.
5) the complaint was not made as a result of a threat or a promise
6) before the statement is adduced, the witness gives oral evidence in connection with its subject matter.
27
Previous complaint is admissible as evidence of both:
(1) to show consistency in complaining (i.e. bolster his credibility/consistency); AND
(2) to prove the TRUTH of the complaint.
So this is an exception to
(1) rule against previous consistent statements AND
(2) rule against hearsay
28
general common-law rule excluding previous consistent or self-serving statements, sometimes referred to as the rule against narrative =
a witness may not be asked about a previous oral or written statement made by the witness and consistent with his or her evidence
[an allegation made by a witness does not become more reliable simply because the witness repeated the allegation numerous times.]
29
Can a witness use the ws of another witness under the rule against narrative?
NO!
evidence of the previous statement may not be given by any other witness
30
CASE LAW EXAMPLE OF rule against narrative
- In Roberts [1942]
- D was convicted of the murder of a girl by shooting her.
- His defence was that the gun went off accidentally when he was trying to make up a quarrel with her.
- The Court of Criminal Appeal held that evidence that two days after the event D had told his father that his defence would be accident had been properly excluded.
- Such evidence is easily manufactured and of no evidential value. The fact that D has said the same thing to someone else on a previous occasion did not confirm his evidence (Roberts, at p. 191).
[ SO No other witness may give evidence of the previous statement.]
31
When does the rule against narrative apply?
EIC
CROSS
AND RE-EXAMINATION
- So a previous consistent statement does not become admissible merely because his evidence/credibility is impeached in cross-examination:
(i.e. cannot bolster credibility of witness by use of previous consistent statements), even if the cross-examination seeks to show inconsistencies between evidence given at trial and something said by witness
previously)
32
Previous consistent statement are admissible regarding Statements rebutting allegation
of recent fabrication
33
Court has residual discretion to permit re-examination to show consistency if
necessary =
in the interests of justice; to ensure that, as a result XX, the jury is not positively misled as to the existence of some fact or the terms of an earlier statement
34
EXCEPTIONS where court WILL HEAR evidence of an PREVIOUS CONSISTENT STATEMENT
a) Res gestae
b) Complaints
c) Statements in rebuttal of allegations of recent fabrication
d) Statements made by suspects on accusation by the police – Confessions + self-serving statements are admissible – use of those statements differ
e) Previous ID & Description
35
Self-serving Statements Made on Accusation
COA could see no reason for casting doubt on the well-established practice, on the part of the prosecution, to admit in evidence 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.
36
The responses to all police allegations are admissible whether they are confessional or self-serving denials of guilt =
Prosecution can admit all unwritten, and most written, statements made by an accused to the police: whether they are confessional or involve self- serving denials of guilt.
37
Self-serving Statements Made on Accusation:
The only difference is to the use to which they are put:
If the statement is wholly adverse to the accused (a confessional), or is a mixed statement =
the whole statement is admissible as evidence of the TRUTH of facts
‘Mixed statement’ is a statement containing both inculpatory and exculpatory parts (eg ‘I killed X, if I hadn’t X would have killed me’)
38
Self-serving Statements Made on Accusation:
The only difference is to the use to which they are put:
If the statement is wholly self-serving (exculpatory), i.e. a suspect
wholly denies an offence to the police
= it CANNOT be admitted as evidence of the TRUTH of facts;
= but MAY be used as evidence of D’s reaction/the consistency of D’s denials/defence (by showing his reaction when first accused) so may be useful to jury to assess overall conduct of the defence.
39
Self-serving Statements Made on Accusation:
[CASE LAW]
In Pearce (1979) 69 Cr App R 365, at pp. 368 and 370,
- the Court of Appeal could see no reason for casting doubt on the well-established practice, on the part of the prosecution, to admit in evidence 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.
- If such a statement is wholly adverse to the accused, it may be admitted as evidence of the truth of the facts contained in it under the PACE 1984, s. 76 (see F18.8).
- If it is a mixed statement, i.e. a statement containing both inculpatory and exculpatory parts, such as 'I killed X. If I had not done so, X would certainly have killed me there and then', the whole statement is admissible (see principle 2(b) in Pearce, at F6.42), and both parts are admitted as evidence of the truth of the facts they contain (Duncan (1981) 73 Cr App R 359; Hamand (1985) 82 Cr App R 65; Sharp [1988] 1 All ER 65 and generally at F18.93). However, if the statement is purely exculpatory or self-serving, it is not admitted as evidence of the facts stated in it; it 'is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts' (Storey (1968) 52 Cr App R 334, per Widgery LJ at pp. 337–8). The police having found cannabis in D's flat, she told them that it belonged to a man who had brought it there against her will. The Court of Appeal upheld the trial judge's rejection of a submission of no case to answer, on the ground that D's statement was not evidence of the facts stated but only evidence of her reaction, which was insufficient to negative evidence of possession. If the accused neither gives nor calls evidence, it is the duty of the judge, in the summing-up, to set out the defence case insofar as it is to be found in a mixed statement, which is admissible as evidence of its contents (Curley [2004] EWCA Crim 2395, applied in Clarke [2010] EWCA Crim 684). Similarly, it seems that if the accused gives no evidence the judge, in the summing-up, should remind the jury of an entirely self-serving statement, not for the truth of its contents but because of its relevance as showing the reaction of the accused on accusation (Donaldson (1976) 64 Cr App R 59 at p. 69 and Squire [1990] Crim LR 341; but see also Barbery (1975) 62 Cr App R 248 at p. 250 and Tooke (1989) 90 Cr
40
The General Rule against IMPEACHING credit of own witness:
a party is not entitled to impeach the credit of its own witness by asking questions or adducing evidence concerning such matters as the witness's bad character, previous convictions, bias or previous inconsistent statements
*General rule doesn’t apply where evidence of a witness’s bad character is
introduced not to impeach his credit re his testimony, but because it supports
some other discrete part of prosecution case.*
41
Definition of “Unfavourable Witness”
i.e. a witness who displays no hostile animus to the party calling him or her but merely fails to come up to proof or gives evidence unfavourable to that party, the general rule prevails
42
In case of an unfavourable witness, the only
remedy available:
is to call other witnesses, if available, with a view to proving that which the unfavourable witness failed to establish
43
Hostility: when to apply to treat a witness as hostile
should be made when the witness first shows unmistakable signs of hostility
44
Applying to treat witness as “Hostile”
If prosecution counsel has a statement directly contradicting own witness who give evidence he is unable to identify the accused =
counsel should at once show statement to judge and ask for leave to cross-examine
45
Applying to treat witness as “Hostile”
But, if a witness gives evidence contrary to an earlier statement or fails to give evidence expected, the party calling him =
judge should FIRST consider inviting him to refresh his memory; and should not immediately proceed to treat him as
hostile (unless witness is so excessively hostile that only appropriate course is to treat him as such).
46
The judge has absolute discretion re whether a witness is hostile and the exceptions
should apply
Although decision is for judge, the jury should not be excluded from proceedings whilst decision is made.
47
The General Rule (no previous inconsistent statements to impeach credibility of own
witness) is modified in 2 respects:
1) that party may (by leave of the judge) prove a previous inconsistent statement of the witness
{o i.e. with leave of judge, can prove that the witness has made a previous statement, written or oral, inconsistent with his present testimony [[s3 Crim Procedure Act]]; AND}
2) Party calling the witness may cross-examine him by asking leading question
o i.e.: with a hostile witness, prosecution can
(1) ask for the earlier inconsistent statement to be put to the witness,
and
(2) the witness can effectively be cross-examined by their own Counsel with leading questions, with the purpose of establishing truth of the earlier account
48
Criminal Procedure Act 1865 (Denman's Act), s. 3
[THE LAW]
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
49
Criminal Procedure Act 1865 (Denman's Act), s. 3
Section 3 comprises three rules.
FIRST RULE
The first is an enactment of the common-law rule that a party calling a witness is not entitled to impeach the witness's credit by evidence of bad character, i.e. evidence of previous misconduct, convictions, or other evidence designed to show that the witness is not to be believed on oath.
50
Criminal Procedure Act 1865 (Denman's Act), s. 3
Section 3 comprises three rules.
SECOND RULE
2nd rule = that a party may 'contradict' a hostile witness + unfavourable witnesses
i.e. call other witnesses to prove that which the hostile witness has failed to establish.
51
Criminal Procedure Act 1865 (Denman's Act), s. 3
Section 3 comprises three rules.
THIRD RULE
ONLY APPLIES TO HOSTILE WITNESSES
= allows the judge to give leave to prove that the witness has made at other times a statement inconsistent with the present testimony.
= may cross-examine him by asking leading
questions on a previous inconsistent statement
52
Statements in rebuttal of ‘recent fabrication’ allegation
statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support the witness's credibility.
[Court must consider S120 CJA 2003) in deciding whether there is an earlier complaint that can rebut the allegation of recent fabrication]
53
Statements in rebuttal of ‘recent fabrication’ allegation
The exception (s120 CJA): A previous statement by a witness admitted as evidence to rebut a suggestion that his oral evidence has been fabricated =
= is admissible (in re-examination) for both:
(1) the truth of its contents; AND
(2) to support his credibility
54
if in cross-examination it is suggested to a witness that his or her evidence is a recent fabrication, evidence of a previous consistent statement =
will be admissible in re-examination to negative the suggestion and confirm the witness's credibility
so If a witness is challenged in the box, and it is suggested that something the witness
just said has only just been fabricated;
= then the witness is permitted to try to prove
this is not the case.
55
Previous inconsistent statements
CRIMINAL JUSTICE ACT 2003, S. 119
(1) If in criminal proceedings a person gives oral evidence and—
(a)he admits making a previous inconsistent statement … the statement is admissible ...
as evidence of any matter stated of which oral evidence by him would be admissible.
56
Previous inconsistent statements
The fact that a witness who has made a previous statement gives evidence that he or she cannot remember the matters in the statement will not necessarily make the statement a previous inconsistent statement.
Such a conclusion obviously cannot be drawn where the witness stands by what was said previously, even though the witness cannot remember the matters stated
However, it is submitted that such a conclusion should be drawn if the witness denies the truth of the earlier statement, in which case, in effect, 'he admits making a previous inconsistent statement', or is treated as a hostile witness on the basis that in all the circumstances of the case the witness is likely to be able to remember the matters in question and by claiming not to be able to do so is not willing to tell the truth to the cour
57
Cross-examination is the
Questioning of a witness by
(a) the opponent of the party who called him
OR
(b) any other party to the proceedings.
58
Cross examination of any other party to the proceedings:
An accused has the right to cross-examine a co-accused who has chosen to give evidence (and any witnesses called by the co-accused).
This applies not only where the co-accused has given evidence unfavourable to the accused but also if the co-accused has merely given evidence in his or her own defence
59
Sequence of cross
MC:
no sequence, simply ‘every other party may ask questions in cross
60
Sequence of cross
CC (specific sequencing):
Where both prosecution & defence witnesses may be cross-examined by any co-accused, in the order:
a) their names appear in the indictment; or
b) as directed by the court.
61
Cross-examination by an accused in person
General rule:
an accused is entitled to cross-examine in person any witness called by the
prosecution.
62
Cross-examination by an accused in person
Common law restriction on general rule:
A trial judge is not obliged to give an unrepresented accused his head to ask
whatever questions, at whatever length, he wishes.
63
Cross-examination by an accused in person
Statutory exceptions to general rule:
(1) No person charged with a Sexual offence
(2) No person charged with a number of ‘Specified Offences’
(3) Court has a general power to give a direction prohibiting the accused from cross-examining a witness in person in some circs
64
Cross-examination by an accused in person
Statutory exceptions to general rule:
No person charged with a Sexual offence
No person charged with a sexual offence as defined in s62 may cross-examine in
person the complainant, either in connection with the offence or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings
65
Cross-examination by an accused in person
Statutory exceptions to general rule:
No person charged with a number of ‘Specified Offences’
no person charged with one of a number of specified offences may cross-examine in person a 'protected witness' either in connection with the offence, or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings
66
Cross-examination by an accused in person
Statutory exceptions to general rule:
Court has a general power to give a direction prohibiting the accused from cross-examining a witness in person if:
† (a) the quality of evidence given by the witness is likely to be diminished by such cross-examination and would be likely to be improved by such a direction; and
† (b) it would not be contrary to the interests of justice.
In deciding (a), court must have regard to the matters including: nature of questions likely to be asked. Accused can make representations re such matters.
67
Where an accused is prevented from cross-examining a witness in person = the court must...
invite him to appoint a legal rep
68
Where an accused is prevented from cross-examining a witness in person = the court
MUST invite him to appoint a legal rep;
if accused
1) fails to appoint a legal rep &
2) it is in interests of justice for witness to be cross-examined by a legal rep
= the court MUST...
choose and appoint such a representative to represent the accused (who shall not be responsible to the accused)
69
A court-appointed advocate
(1) does not have a free-ranging remit to conduct the trial on the accused's behalf.
his duty is to cross-examine a particular witness (may include applications (a) to admit bad character evidence of witness, (b) for
disclosure of material relevant to the XX)
Technically, his role ends at conclusion of the cross [[but if advocate is prepared to stay and help accused on a pro bono basis, court should not oblige him to leave]]
70
Jury warning: Where an accused is prevented from cross-examining a witness in person,...
the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced by any inference that might be drawn from the fact that such cross-examination has been prevented or by the fact that the cross-examination was carried out by a court-appointed representative.
71
What is the Object of Cross-examination?
(a) to elicit from the witness evidence supporting the cross-examining party’s version of the facts in issue;
(b) to weaken or cast doubt on accuracy of the evidence given by the witness in chief;
and
(c) in appropriate circumstances, to impeach the witness’s credibility
72
Role of the Judge during cross-examination?
The court may ask a witness questions and, in particular, where the accused is not represented, ask a witness any question necessary in the interests of the accused
73
Should the judge intervene during cross when it is conducted by a competent advocate?
Generally = no
EXCEPT to clarify matters the judge does not understand or thinks the jury may not understand
74
Judge intervene during cross: what if the judge wishes to ask questions about matters that have not been touched upon?
it is generally better to wait until the end of the examination or cross-examination
75
Judge should not be criticised for occasional transgressions; but if defence counsel is so hampered in the conduction of the cross =
then the judge’s conduct may amount to a material irregularity.
76
In Mustafa [2020] EWCA Crim 1723, the Court approved the following three principles as set out by the Civil Division of the Court of Appeal in Serafin v Malkiewicz [2019] EWCA Civ 852 at [108]–[110] under the heading 'The principle of fairness'
[CASE LAW]
(1) It is a fundamental tenet of the administration of law that all those who appear before the courts are treated fairly and that judges act—and are seen to act—fairly and impartially throughout the trial.
(2) It is a duty of a judge to intervene in the course of witness evidence 'to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if this is unclear'
(3) It is wrong for a judge 'to descend into the arena and give the impression of acting as advocate'
77
Putting One’s Case/Failure to do
a party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict the witness or impeach his or her credit by calling other witnesses, tacitly accepts the truth of the witness's evidence in chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve the witness in that regard
so principle of ‘putting your case’ where it conflicts with the witness
and unless witness' account is challenged = you havent put your case!!
78
Effect of failure to put your case
deemed to have accepted what witness says; cannot invite tribunal of fact to disbelieve on that matter in the closing speech.
79
Putting his case when a witness is young or otherwise vulnerable =
the court may impose restrictions on an advocate 'putting his case' when there is a risk of the witness failing to understand, becoming distressed or acquiescing to leading questions
80
Cross Exam rules: should advocate cross on matters which are not really in issue
NO
81
Cross Exam: rules
(1) questions should not be in the nature of comment on the facts;
(2) comments should be confined to speeches.
(3) Nor should questions be framed in such a way as to invite argument rather than elicit evidence on the facts in issue
(4) : ‘where acting as advocate, your duty not to abuse your role includes...must not make statements or ask questions merely to insult, humiliate or annoy a witness
(5) the judge has a general discretion to prevent any questions in cross-examination which the judge considers to be unnecessary, improper or oppressive.
(6) Many witnesses may require assistance, and indicates that the court must facilitate the participation of 'any person'. This includes enabling witnesses to give their best evidence, and the pre-trial and trial process should, so far as is necessary, be adapted to meet such ends.
82
Cross exam: an advocate should avoid questions such as:
'I suggest to you that …' and
'Do you ask the jury to believe that …'
83
Scope of Cross-examination
Questions in cross-examination are not restricted to matters raised in chief
Questions in cross can relate to:
(1) any fact in issue or relevant fact; or
(2) the credibility of any witness.
- Unless a Witness’s account is challenged
on a particular point it is deemed to have been tacitly accepted
- Required to “put” your case to witness
84
Scope of Cross-examination
Leading questions:
are permitted
even if the witness appears to be more favourable to the cross-examining party than to the party calling him or her
85
Scope of Cross-examination
The exclusionary rules of evidence relating to hearsay, opinion, privilege etc....
apply to cross-examination as they apply to examination-in-chief
In Treacy [1944]
- a charge of murder,
- it was held that D had been cross-examined improperly upon certain inadmissible confessions made on arrest and inconsistent with his evidence.
- It has been said that the principle established in this case, that an accused cannot be cross-examined by the prosecution in such a way as to reveal that the accused made an inadmissible confession, also obtains in favour of any co-accused
86
Scope of Cross-examination
Court has general duty to deal with cases efficiently & expeditiously, and to actively manage cases to ensure evidence is presented in shortest & clearest way.
As part of its case management powers, the court may limit the duration of any stage of the hearing and the cross-examination of a witness
87
Scope of Cross-examination
Time-limits: Principles
1. Imposition of time-limits for cross/chief examination of witnesses should not become a routine featureof trial management; but judges are fully entitled to impose reasonable
time-limits where counsel indulges inverbiose/repetitious questioning.
2. Is not duty of counsel to put to a witness every point of an accused’s case, however peripheral; or embark on cross on matters not really in issue. Duty of counsel to discriminate between important & relevant
features of a defence case which have to be put to a witness; and minor/unnecessary matters.
3. Entitlement to fair trial is not inconsistent with proper judicial control over the use of court time; CA will not interfere with a decision made by a judge in unless clear it resulted in unfairness
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Cross-examination as to credit
The purpose of cross-examination as to credit is to show that the witness ought not to believed =
therefore: the matters about which he is questioned must relate to his likely standing after cross with the tribunal which is trying him.
So he may be cross-examined about:
i. his means of knowledge of facts he testifies;
ii. his opportunities for observation;
iii. his powers of perception;
iv. the quality of his memory;
v. mistakes/omissions/inconsistencies in his
evidence;
vi. and omissions/inconsistencies in previous
statements that relate to his likely standing with the jury after cross [[but which are not
relative to the subject matter of the indictment].
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Cross examination in regards to quality of memory
there is a risk of 'contamination' or collusion when officers have conferred in the production of statements about events or interviews
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Cross examination in regards to omissions
where an accused is charged with a sexual offence and asserts fabrication on the part of the complainant, the accused may be cross-examined as to what facts are known to the accused that might explain why the complainant would make a false accusation
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In a sexual case
the defence may seek to undermine the credibility of the complainant by cross-examination on her delay in making her complaint, in which case the judge should direct the jury that:
whereas some may complain immediately to the first person seen, others may feel shame and shock and not complain for some time, and that a late complaint is not necessarily a false one
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A witness may also be cross examined about:
i. his previous convictions OR bias (if is
lawful considering rules of evidence of bad
character, below)
ii. any mental/physical disability affecting
his reliability;
iii. previous inconsistent statements made by
him ‘relative to the subject-matter of the
indictment’ and inconsistent with his
testimony;
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Bad Character and cross examination
(1) cross-examination is permitted only if it comes within one of the specified categories of admissibility set out in s. 100 or s.101
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Evidence of bad character for the purposes of the Act is defined by s. 98 =
Evidence of, or of a disposition towards, misconduct, other thanevidence which:
* 'has to do with the alleged facts of the offence with which the defendant is charged'
* or 'evidence of misconduct in connection with the investigation or prosecution of that offence'
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Cross examination: Code of Conduct for Barristers
‘where acting as advocate, your duty not to abuse your role includes...must not make statements or ask questions merely to insult, humiliate or annoy a witness’.
The Handbook for professional practice is clear that: upsetting a witness should never be done gratuitously, for its own sake, and should never be done unless it serves a clear & useful purpose. = Judge will determine if questions ‘cross the line’.
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Rule of ‘Finality on collateral matters’ (another restriction on XX)
“Collateral issue” =
matters which go merely to credit but which are otherwise irrelevant to issues in a case
General rule = evidence is not admissible to contradict answers given to questions put in
cross which concern ‘collateral matters
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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.'
E.g. : if a witness (X) gives evidence of Y, then it is useful to know how credible he is as a witness. If X gives a questionable piece of evidence on a less crucial issue (evidence of Z), the question arises over the extent that an advocate for the opposing party can look to
prove that Z is inaccurate and that, by extrapolation, Y should be deemed inaccurate too. Otherwise, the party calling witness X might then ask to call evidence to contradict the evidence that casts doubt on
Z, and the trial ends up in a quagmire over whether or not Z is an accurate statement, even though it is collateral to the issues in the case.
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witness’s answer to a collateral matter is final
unless it comes within one of the recognised exceptions
- Rationale: desirability of avoiding a multiplicity/proliferation of essentially irrelevant issues at trial.
o Does not mean the collateral fact is true – that is still a matter for the tribunal of fact; it’s just you can’t ask anything further about it or
try to disprove what they’ve said
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Bias and Partiality: exception to the Rule of finality of answers to questions on collateral matters
The courts are more lenient in allowing evidence to be admitted on the ‘collateral’ issue of a witness being ‘biased or partial’;
o AND when a witness denies being biased/partial…counter-evidence will be admissible (where a party wishes to call evidence in rebuttal of witness’s denial of bias)
o Common law doctrine = evidence is admissible to: contradict a witness’s denial of bias/partiality towards one of the parties; and to show that he is prejudicial re the case being tried.
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Re-examination
After cross-examination, a witness may be re-examined by the party who called him or her
re-examined on any new matters which arose out of cross-examination
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Can a hostile witness be re-examined?
YES1
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The principal rule of re-examination is that, except with the leave of the judge, matters should be confined to matter that:
were arising out of cross-examination.
Applies not only to a witness who has been EIC but also a witness whose name is notionally on the back of the indictment and who was called by prosecution merely to allow the defence to cross-examine him.
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Where a witness under XX gives evidence of part of a conversation with him on some previous occasion;
questions may not be asked in re-examination about everything else said at the same time; but only about so much as can be connected with the statement as to which he was cross-examined (e.g. other statements which qualify or explain it).
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Special measures for witnesses
The COA has stressed that the wide range of special measures has not altered the court's responsibility for the fairness of the trial
trial judges are expected to deal with specific communication problems faced by any defendant or witness as part of their ordinary control of the judicial process
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The litmus test of the special measures regime appears in s. 19(2),
requiring the court to consider which measures will 'maximise the quality of the evidence'
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For witnesses under 18, the test in s. 19(2) is
presumed to be satisfied by playing their recorded interviews with the police as their evidence-in-chief, and by cross-examination via video link
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Range of Special Measures Available
† (a) screening the witness from the accused (YJCEA 1999, s. 23);
† (b) giving evidence by live link, accompanied by a supporter (s. 24) (for other uses of live link, see D15.96);
† (c) giving evidence in private, available where sex offences or modern slavery, servitude, forced labour or human trafficking are charged (Modern Slavery Act 2015, s. 46(3)) or where there is a concern that the witness may be intimidated (YJCEA 1999, s. 25);
† (d) ordering the removal of wigs and gowns while the witness gives evidence (s. 26);
† (e) video recording of evidence-in-chief (s. 27);
† (f) video recording of cross-examination and re-examination where the evidence-in-chief of the witness has already been video-recorded (s. 28) (see D14.52);
† (g) examination through an intermediary for a young or incapacitated witness (s. 29);
† (h) provision of aids to communication for a young or incapacitated witness (s. 30); and
† (i) a witness anonymity order (CAJA 2009, Part 3, ch. 2), which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure (part 3, chapter 1: see D1.210).
-
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Practitioners should also bear in mind other protective procedures, such as:
orders under the YJCEA 1999, s. 46, for restrictions on reporting and public access to protect a fearful or distressed adult witness's identity, where such an order is likely to improve the quality of that witness's testimony or cooperation
complainant anonymity in sex offence cases (
the prohibition on cross-examination by the accused in person of
(i) child complainants of or witnesses to sexual offences, offences of violence, cruelty, kidnapping, false imprisonment or abduction, and
(ii) adult complainants in sexual offence cases
the use of pre-trial depositions of children or young persons under the CYPA 1933, s. 43
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Eligibility Categories: General
Special measures
Both for D and P witnesses:
† *†††† all witnesses under the age of 18 at the time of the hearing or video recording;
† *†††† vulnerable witnesses affected by a mental or physical impairment;
† *†††† witnesses in fear or distress about testifying;
† *†††† adult complainants of sexual offences, or of offences under the Modern Slavery Act 2015, ss. 1 (slavery, servitude and forced or compulsory labour) and 2 (human trafficking), or of any other offence where it is alleged that the behaviour of the accused amounted to domestic abuse within the meaning of the Domestic Abuse Act 2021, s. 1; and
† *†††† any witness in a case involving a 'relevant offence', currently defined to include homicide offences and other offences involving a firearm or knife.
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For witnesses who are not automatically eligible (i.e. those affected by mental or physical impairment or in fear or distress about testifying),
the court must =
determine whether the quality of the evidence would be diminished by the witness's condition
+ taking into account any views of the witness, before making a declaration of eligibility.
Adult complainants of sexual offences (s. 17(4A)) and witnesses in 'relevant offence' cases have an unqualified right to opt out of special measures
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Child and Other Vulnerable Defendants
Eligibility of Defendant for Live Link
allows CC and MC to:
on application by the defence, to direct that the accused testify via a 'live link'. The court must be satisfied that it would be in the interests of justice, and also that the live link would enable the accused to participate more effectively as a witness, whether by improving the quality of the accused's evidence or otherwise, because:
† (a)†††† if the accused is under the age of 18, 'his ability to participate effectively ... as a witness giving oral evidence is compromised by his level of intellectual ability or social functioning' (s. 33A(4), emphasis added); or
† (b)†††† if the accused is aged 18 or over, he or she is unable to participate effectively in the proceedings as a witness giving oral evidence because he or she has a mental disorder (within the meaning of the Mental Health Act 1983) or a 'significant impairment of intelligence and social function' (s. 33A(5)).
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presumption remains that adult defendants should give evidence in court
that 'the lower threshold for child defendants recognises that it may be more common for them to experience difficulties during the trial through limited intelligence and social development, than it would be for adults' but went on to emphasise that s. 33A(4) 'is aimed at juvenile defendants with a low level of intelligence or a particular problem in dealing with social situations, and is not intended to operate merely because an accused is a juvenile and is nervous, for example'.
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The role of intermediaries
a person who is either approved by the court under the YJCEA 1999, or is asked to assess a defendant's communication needs, or appointed by the court to facilitate a defendant's effective participation in the trial, when the defendant gives evidence or at any other time, where otherwise that defendant's communication needs would impede such participation
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Eligibility of Defendant for an Intermediary
CC + MC
continue to deploy inherent powers to direct that the defendant be assisted by an intermediary
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 (as defined in s. 1(2) of the Mental Health Act 1983), or a physical disability or disorder; and
(b) the appointment is 'necessary' for the purpose of facilitating effective participation.
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The requirement in the unimplemented provision that child defendants' ability to testify be compromised by their level of intellectual ability or social functioning in order to access an intermediary's assistance does not pose an obstacle to an appointment at common law. CrimPR 18.27(5) confirms that the court may act on its own initiative to appoint an intermediary,
The court may not vary or discharge an intermediary order unless satisfied that since the order was made the defendant's communication needs or other material circumstances have changed materially, and the defendant would be still able to participate effectively without the order (r. 18.27(6)).
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Practitioners should be vigilant to identify defendants with comprehension difficulties which could warrant an application for an intermediary
Communicourt, which specialises in vulnerable defendants, does not recommend an intermediary attend trial in 24 per cent of its assessments).
Those ground rules should take account of how all evidence is led throughout the trial to enable the defendant to understand and participate in the proceedings (see D15.47).
In R (AS) v Great Yarmouth Youth Court [2011]
- Mitting J held that magistrates had acted irrationally in denying an intermediary to a defendant with ADHD, notwithstanding that he was not wholly incapable of communicating his testimony, underlining the entitlement of a defendant with communication difficulties, like any other witness, to give best evidence
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The new CrimPR 18.27(2) sets out a detailed list of factors to which the court 'must have regard' in determining whether an intermediary appointment is necessary:
[THE LAW]
(a) the defendant’s communication
needs as reported to the court
(b) the recommendations in any intermediary’s report received by the court
(c) any views that the defendant has expressed about
(i) receiving the assistance
of an intermediary, or
(ii) other measures or arrangements
to facilitate the defendant’s effective participation in the trial
(d) the likely impact of the defendant’s age,
if under 18, level of intellectual ability
or social functioning on the ability to
(i) give evidence, and
(ii) understand what is said and done
by the court and other participants
(e) the likely impact on such participation
and on such understanding of any mental
disorder or other significant impairment
of intelligence or social functioning
(f) the adequacy of arrangements for
questioning the defendant in the
absence of an intermediary
(g) any assistance that the defendant has received in the past
(i) while giving evidence in legal proceedings
(ii) while being questioned during the
investigation of an alleged offence, or
(iii) as a defendant in a criminal case
(h) any assessment of the defendant’s health
by a mental health practitioner acting independently of the parties to assist the court
(i) any expert medical opinion that the
court may have received, and
(j) any other matter that the
court thinks relevant
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Intermediaries are independent of the parties and owe their duty to the court
They must assist the court to achieve the overriding objective set out in the CrimPR,
including assessing continually the witness's or defendant's ability to participate,
and intervening if necessary
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Intermediaries: experts
Intermediaries should not be asked to provide expert opinion or testimony
+ should not be asked to give an opinion regarding the reliability of a witness, or as to the defendant's fitness to plead,
+ an intermediary should not be sworn as a witness at a GRH
THEIR ROLE IS ONLY = to assist communication of evidence
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Intermediates: experience has shown that one of the most useful functions of intermediaries is to assist the trial judge and counsel in establishing what types of questions are likely to cause misunderstanding, and thus avert them (
Even though the YJCEA 1999, s. 29, makes it clear that an intermediary can assist a witness to communicate by explaining questions and answers, this happens very rarely in practice; advocates usually put their questions directly to the witness, with the intermediary intervening only where miscommunication is likely to have occurred.
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intermediaries: impartiality and D
Particular care is required to ensure that intermediaries assisting defendants do not jeopardise their impartiality through their close contact with them, and that transparency as to their involvement is observed at all times
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The following is the specific statutory provision with which students should be familiar (and able to refer to by section number): section 139 Criminal Justice Act 2003
Use of documents to refresh memory
