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Examination - Coggle Diagram
Examination
Cross Examination
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Improper questions (misleading, confusing, annoying, harassing, intimidating, offensive or repetitive) are not allowed
It appears to us contrary to all rules of evidence and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination
Lopes LJ in Allen v Bell (1894) P. 248 (CA)
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Types of questions
Open questions
Provide people the opportunity to tell a story, on their own terms.
During examination in chief, ideal process is to use an open question to get the witness started, followed by a series of further open questions to keep them going.
- What did you do on the night of 31 October
- What happened after you got to the nightclub?
- Once the two men started shouting, what happened next?
- When you followed the bouncer, what did you see?
Closed questions
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Do not allow the witness to tell their story, but they may validly be used in order to allow the witness to clarify some aspect of their evidence, before the next open question
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Leading questions
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In this situation, the lawyer is effectively the one telling the story; the witness is merely agreeing or disagreeing with the story the lawyer tells
Often, although perhaps unfairly, the lawyer will treat 'no' as though it means 'yes'. This is a good time to object
You went there that night to start a fight didnt you?
No, I did not!
And when you got there, you decided the accused was going to be the target of your attack, isnt that right?
NO! It wasnt like that!
Probing questions
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- What happened when you went to the place?
- We sat on the couch and spent time together
- When you say "spent time together", what were you actually doing?
- First we watched a DVD, then we kissed
- Did you have sex?
Rhetorical questions
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Statements disguised as a question, usually no sensible answer can be given
If used against you, you should object.
The officer used his taser and I fell to the ground. There was no need for him to do that.
Witness, you confronted the police with a knife, what would you expect them to do!
Hypothetical questions
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Not inherently unacceptable, but should be used with caution. Not suitable for asking about the actual events at hand.
How did the child react?
He was clearly hurt, but didn't cry - it was strange
How would you expect most children to have reacted?
His ankle was badly twisted, Id expect most children to have been screaming
Re-Examination
Permits the side calling a witness to ask them further questions to clarify evidence which they have given in cross-examination Prince v Samo (1838) 112 ER 606
Particularly important when cross examining counsel raises issues which were never discussed during examination in chief
Re-examination is not a free for all. Generally speaking, re-examination is limited to matters discussed in cross.
It would not be fair for new matters to be raised in re-examination, because there is no second round of cross-examination
Sneaky Tricks
Asking for ever more detail
So..just before the collision, what gear were you in? What were your engine revs?
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Post hoc ergo propter hoc
You had an argument with your girlfriend, and twenty minutes later her car was damaged!
Reversing onus of proof
The burglar alarm sounded and you were seen running down the street. If you didn't break into the house, who do you think did??
Examination in Chief
Leading Question
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During examination in chief a witness is examined by counsel calling them, to tell the court what they know
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Objection!
While the court has over-riding capacity to rule questions to be out of order, in reality it will usually be necessary for opposing counsel to raise an objection
By failing to object to a question at the time it is asked, opposing counsel is impliedly accepting that the question may be asked, or, is in order.