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Week 5 Course of a Trial - Coggle Diagram
Week 5 Course of a Trial
The Course of Testimony
Cross-Examination
Purposes
- To test the evidence given in chief;
- To show that harmful evidence is unreliable;
- To show that harmful evidence has low probative value.
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Re-Examination
The final stage of the oral evidence process is re-examination, which is (once again) conducted by the side that called the witness.
Re-examination is a limited opportunity to clarify evidence that was canvassed during the witness’ cross-examination.
It will be strictly limited to matters which were raised in examination-in-chief or cross-examination: Szach v The Queen (1980) 2 A Crim R 270.
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
This is particularly important when, for instance, the cross-examining counsel raises issues which were never discussed during examination in chief.
Examination In Chief
During examination in chief, the witness is assisted, by the counsel calling them, to tell the court what they know
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Objections
If, at any time, your opponent appears to be asking questions which breach any of the rules of oral evidence, it is vital to raise an objection immediately. A failure to do so is, in essence, a signal to the judge that you accept the appropriateness of your opponent’s question.
Types of Questions
Closed questions
Closed questions are questions which require a very short, perhaps one or two word answer (but not usually ‘yes’ or ‘no’).
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Leading questons
They are generally forbidden during examination-in-chief, although they are permitted in cross-examination.
How can we moderate that danger? Again, the process of objection becomes important. If our opponent continues to put propositions to our witness despite their continued denials, we might object that questions are improper, because they are merely harassment of the witness.
In a leading question in court, the lawyer essentially posits a statement or circumstance, and invites the witness to either accept the statement or reject it.
Open questions
Open questions provide the witness the opportunity to tell a story, on their own terms.
During examination in chief, the ideal process is to use an open question to get the witness started, followed by a sequence of further open questions to keep them rolling:
Probing questions
Probing questions ‘peel away the layers’ of an initial answer, seeking more detail without actually challenging the answer given by the witness.
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When you say you “spent some time together”, what were you actually doing?
At first we watched a DVD, and later we kissed
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Hypothetical questions
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Hypothetical questions become dangerous and objectionable if the advocate uses them because they are unhappy with the real facts, and want to pretend the facts are more helpful.
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His ankle was pretty badly twisted, so I'd expect most children to have been screaming
Rhetorical Questions
The main characteristics of rhetorical questions are first, that no sensible answer can be given and second, no answer is actually expected.
if your opponent asks a rhetorical question as a way of undermining your witness, you should certainly object.
The police officer used his taser, and I fell to the ground. That is when I sustained my head wound. There was no need for him to do it.
Mr Witness, you confronted police with a knife in your hand! What did you expect them to do?
Sneaky tricks
- Asking for ever more detail.
So, just before the collision, what gear were you in, and 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 the onus of proof.
The burglar alarm sounded, and you were seen
running down the street. If you didn't break into the house, then who do you think did?