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The rules relating to the examination of Witnesses - Coggle Diagram
The rules relating to the examination of Witnesses
LEADING QUESTIONS- GENERALLY IMPERMISSIBLE IN CHIEF
During an examination in chief a witness may not be asked leading questions
For example, questions framed in such a way as to suggest the answer sought or to assume the existence of facts yet to be established- evidence elicited in such a manner are inadmissible
Leading justice may be allowed in the interests of justice as the discretion of the judge
For example, when a magistrate dies in the course of a case in which the witness has given evidence, the witness when recalled before a new magistrates may be asked whether the disposition represents their evidence
Leading questions may be asked on formal and introductory matters. For example, a witness name, address, and occupation and questions which relate to other relevant facts which are not in dispute
Leading questions may be put to a witness if the party calling him or her has been given leave to treat the witness as hostile
STATEMENTS IN REBUTTAL OF ALLEGATIONS OF RECENT FABRICATION
A statement by a witness is 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 credibility
Criminal Justice Act 2003 s120
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 credibility
A complainant must give evidence of having made the complaint
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 the use as a tool for deciding where the truth lies
Whether the evidence may fairly assist in that way and not the length of time
Where evidence of the complainant is admitted to rebut an allegation of recent fabrication, a conviction will not be quashed in the absence of a direction on independence
For example, in the absence of a direction to the effect that in deciding what weight the complaint should bear the jury should have in mind that it comes from the same person who makes the complaint in the witness box and not from and independent source
MAKING OR VERIFICATION OF DOCUMENT
A document means anything in which information of any description is recorded Bur not the recording of sounds or moving images The document must have been prepared by the witness or another provided that the witness verifies the document
TIME AT WHICH TO APPLY TO TREAT WITNESS AS HOSTILE
The application to treat a witness as hostile should be made when the witness first shows unmistakable signs of hostility
If the prosecution has a statement which directly contradicts one of their witnesses who gives evidence that he or she is unable to identify the accused, counsel should show the statement to the judge and ask for leave for cross examination
ROLE OF THE JUDGE AND THE JURY
The discretion of the judge however hostile the witness is is absolute and the decision will rarely be open to a successful challenge on appeal
Although the question whether a witness is hostile is for the judge in the evidence of the jury following a formal application, the evidence and the demeanour of the potentially hostile witness should usually be tested in the presence of the jury
CRIMINAL PROCEDURE ACT 1865 (DENMAN'S ACT) S3
The common law rule that a party calling a witness is not entitled to impeach the witness credit by evidence of bad character i.e the evidence of previous misconduct, convictions, or other evidenced designed to show that the witness is not to be believed on oath
In assessing whether a witness is hostile a judge will consider many factors including whether the witness is in a position to assist, whether the witness has indicated a willingness to assist, any previous accounts given and demeanour in the witness box
The issue does not depend solely on whether the witness has been previously inconsistent in a written statement or in evidence on oath
A party may contradict a hostile witness ie call other witnesses to prove that which the hostile witnesses has failed to establish
SELF SERVING STATEMENTS MADE ON ACCUSATION
If the accused statement is a mixed statement eg a statement containing both inculpatory and exculpatory parts such as the accused killed X, If the accused would have not done so X would have certainly killed the accused there and then the whole statement becomes admissible and both parts are admitted as evidence of the truth of the facts
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 the contents but because of its relevance
UNFAVOURABLE AND HOSTILE WITNESSES
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 bad character, previous conviction, bias or previous inconsistent statements
If a witness is unfavourable 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 only other remedy is to call other witnesses if available
The prosecution may call a witness to give evidence to contradict that part of which they consider worthy to belief and may adduce other evidence that part of the witness evidence which they consider to be inaccurate or false and invite the jury to reject that part of the witness's evidence
Where a judge finds the witness to be hostile that is desirous of telling the truth to the court
A party may by leave of the judge prove a previous inconsistent statement of the witness
At common law the party calling the witness may cross examine him or her by asking leading questions
GENERAL RULE AGAINST PREVIOUS CONSISTENT SELF SERVING STATEMENTS
A witness may not be asked about a previous oral evidence or written statement made by the witness and consistent with their evidence
Evidence of a previous statement may not be given by any other witness
A previous statement may be inadmissible as evidence of the facts contained are hearsay
It also applied in examination in chief and cross examination and re examination
The credibility of a witness may not be bolstered by evidence of a previous consistent statement merely because the witness statement was impeached in cross examination
BIAS AND PARTIALITY
Evidence has always been admissible to contradict a witness's denial of bias or partiality towards one of the parties and to show that the witness is prejudicial concerning the case being tried
Much evidence of bias is likely to be admissible because it will fall outside the statutory definition of bad character which excludes evidence or disposition of bad character which has to do with the alleged facts of the offence
If evidence is not admissible it will not likely to be admitted
A witness may be asked how he stands affected towards one of the parties and if his relation to them is such as to prejudice his mind and fill them with feelings of revenge and if they deny that fact evidence may be given to show the state of their mind and feelings
The defendant may call evidence to contradict a prosecution witness who in cross examination denies having threatened to be revenged on D following a quarrel
For example, while a police officer was was given evidence a man in the public gallery was taken notes he was then later discussing it with the D husband apparently describing the police officer to him. The husband denied this whilst under cross examination
The prosecution where allowed to call evidence in rebuttal as the husband was prepared to lend himself to a scheme designed to defeat the purpose of keeping prospective witnesses out of court
RE- EXAMINATION
After cross examination a witness may be re-examined by the party who called them
This also applied to hostile witnesses who may be re-examined on any new matters which arose out of cross examination
Leading questions may not be asked
In re examination questions should be confined to matters, including new matters arising out of cross examination
Where a witness under cross examination gives evidence of part of a conversation on some previous occasions questions may not be asked in re examination about everything else that was said at the same time but only about so much as can be in some way connected with the statement as to which witnesses are cross examined
PRIOR TO GOING INTO THE WITNESS BOX
The conditions on which the witness may refresh their memory while giving evidence in the witness box do not apply to a witness who refreshes memory from a statement before going to the witness box All witnesses are routinely provided with copies of their statements before going to court Witnesses are entitled to refresh their memory from their statement visually recorded in the interview
Witnesses for the prosecution are normally entitled if they request to copies of any statements taken from them by police officers
Defence witnesses are allowed to have copies of their statements and to refresh their memories from them before going into the witness box
Testimony in the witness box becomes more a test of memory than truthfulness
Refusal of access to statements would tend to create difficulties for honest witnesses but would be likely to do little to dishonest witnesses
The prosecution and judges need to ensure that witnesses are informed that they should not discuss cases in which they are involved in
Discussions between witnesses particularly before going to court to give evidence should not take place nor should statements or proof of evidence be read to witnesses in each others presence
Where such discussions have taken place each case must be dealt with in its own facts
AFTER GOING TO THE WITNESS -BOX
In some cases it may be appropriate for the witness to withdraw from the witness box and read the statement in peace
If the witness is dyslexic and cannot read an earlier statement the witness may be given the opportunity of letting counsel read it out in the absence of a jury
CROSS-EXAMINATION ON MEMORY- REFRESHING DOCUMENT
If a witness has refreshed their memory out of court and before entering the witness box, counsel for the other side not only to inspect the memory refreshing document but also cross examine the witness upon the relevant matters contain in document If counsel cross examines upon material which has not been referred to by the witness this entitles the party calling the witness to put the document in evidence so that the tribunal of fact may see the document upon which the cross examination is based
PREVIOUS COMPLAINTS
The witness complaint whether oral or written is admissible subject to a number of conditions:
The witness testifies that to the best of their belief they made in their statement and it is true that the witness claims that an offence was committed against them
That the offence is related to the current proceedings
The complaint is about conduct which would if proved constitute the offence or part of it
A statement received for these provisions are admissible as evidence of the matters stated and also goes to the consisteny of the witness
The complaint was not made as a result of threat or a promise
Criminal Justice Act 2003 s120
REFRESHING THE MEMORY
A witness may refer to a document when given evidence to refresh their memory in two conditions:
That the witness gives evidence that the document records his or recollection at the time it was made AND
That their recollection at the time is likely to have been significantly better than at the time of the oral evidence
Criminal Justice Act 2003 s139
An application to refresh memory will normally be made by an advocate but it is the proper function of the judge where the interests of justice demands it
The witness may refresh their memory at any stage in the course of giving oral evidence
A witness refreshing memory in court will normally do so in the examination in chief provided that the conditions are met
PREVIOUS INCONSISTENT STATEMENTS
If a witness in cross examination of chief admits making a previous oral or written inconsistent statement the statement is admissible under s119 of CJA 2003 as evidence of any matter stated of which oral evidence by the witness would be admissible
The statement is admissible for the truth of its contents as evidence against its maker
It it implicates the co accused it does not allow it to be used against the co accused
If a witness says they cannot remember in matters in the statement it does not necessarily make it an inconsistent statement
SPECIAL MEASURES FOR WITNESSES
A trial must be adapted to the needs of children, vulnerable witnesses and defendants including those with physical and mental disabilities
This enables the witnesses and the accused to give their best evidence and comprehend proccedings
The Equality Act 2010 demands substantive quality for everyone appearing in court to ensure they can full participate
The court has safeguarding responsibilities to children and the vulnerable
All witnesses regardless of their age or disability are presumed competent
If competence is brought to an issue it needs to be demonstrated that the witness can understand questions and give answers
The wide range of special measures does not change the courts duty to ensure fairness of a trial
Judges are expected to deal with specific communication problems faced by any defendant or witneses
Eg live links, video recording, etc
THE LITMUS TEST
Is the test for special measures regimes requiring the court to consider which measures will maximise the quality of the evidence
For witnesses under 18 playing the recorded interview
Flexibility is encouraged
RANGE OF SPECIAL MEASURES AVAILABLE
Screening the witness from the accused
Giving evidence by live link accompanied by a supporter
Giving evidence in private
Removal of wigs and gowns while witness is giving evidence
Video recording of evidence in chief
Video recording of cross examination and re examination
Examination through an intermediary for a young or incapacitated witness
Provisions of aids to communication for a young or incapacitated witness
Witness anonymity order
Restricting of reporting and public access to protect distressed or fearful adult witness
Complainants anonymity
Considering domestic abuse
Pre trial dispositions of children
ELIGIBILITY CRITERIA
Apply to both prosecution and defence witnesses
Witnesses under the age of 18 at the time of the hearing
Vulnerable witnesses mental or physical health
Witness in fear or distress of testifying
Adult complainants of sexual offences
Domestic abuse witness
Witness involved in a case of homicide, firearm or knife crime
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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
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
RULE OF FINALITY OF ANSWERS TO QUESTIONS ON COLLATERAL MATTERS
Evidence is not admissible to contradict answers given by a witness to questions put in cross examination which concern collateral matters
For example, matters which go merely to credit but which are otherwise irrelevant to the issues in the case
Questions about the witness previous misconduct must be treated with caution
The test whether a matter is collateral or not is:
If the answer of the witness is a matter which you would be allowed on your own part to prove 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 contradict them
NATURE OF CROSS- EXAMINATION
Cross examination is the questioning of a witness by the opponent of the party calling the witness OR
Any other party to the proceedings
An accused has the right to cross examine the co accused who has chosen to give evidence
This applies not 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
Usually cross examination follows immediately after examination in chief
Such a witness is called by the prosecution sworn, asked no question in chief other than name and dress and then cross examined by the defence
SEQUENCE OF CROSS EXAMINATION
In magistrates court proceedings every other party may ask a question in cross examination
In the Crown Court both prosecution and defence witnesses may be cross examined by any co accused in the order their names appear on the indictment or as directed by the court
A defence witness may be cross examined by the prosecution after cross examination by any co accused
CROSS EXAMINATION BY THE ACCUSED IN PERSON
A accused is entitled to cross examine in person any witness called by the prosecution
No person charged with a sexual offence may cross examine the complainant in person
A protected witness may not be cross examined
Direction prohibiting the accused from cross examining a witness in person if:
The quality of evidence given by the witness is likely to be diminished by such cross examination and would likely be improved by such direction and
It would not be in the interests of justice to do so
The court must have regard to the nature of the questions asked
Where the accused is prevented from cross examining a witness in person the court must invite the accused to appoint a legal representative and if the accused fails to do so the court decides it is in the interest of justice for the witness to be cross examined by a legal representative appointed to represent the interest of the accused the court must choose and appoint a representative who shall not be responsible for the accused
Advocates role is to cross examine a particular witness properly done
The judge must give the jury a warning it the accused is prevented from cross examining the witness in person to ensure that the accused is not prejudiced by any inferences drawn
OBJECT OF CROSS EXAMINATION
The object of cross examination is to elicit the witness evidence supporting the cross examining partys version of the facts in issue
To weaken or cast doubt upon the accuracy of the evidence given by the witness in chief and
In appropriate circumstances to impeach the witness credibility
THE ROLE OF THE JUDGE IN CROSS EXAMINING
The court may ask a witness questions and in particular where the accused is not represented ask a witness any questions necessary in the interests of the accused
During cross examination a judge should not intervene
The judge can intervene to clarify matters the judge does not understand or thinks the jury may not understand
It is better for the judge to wait till the examination has ended and then ask questions
THE PRINCIPLE OF FAIRNESS All those who appear before the judge act and are seen to act fairly and impartially during the trial
The judge has a duty to intervene in the course of witness evidence to ask questions which clarify ambiguities in answers previously given or which may identify the nature of the defence
It is wrong for a judge to be biased and it makes it trial unfair
PUTTING ONES CASE AND THE EFFECT OF FAILURE TO DO SO
A party who fails to cross examine a witness upon a particular matter in respect of which was proposed to contradict the witness or impeach his or her credit by calling other witness, tacitly accepts the truth of the witness evidence in chief on that matter and will not be entitled to invite the jury to disbelieve the witness
The trial needs to be fair
Cross examination gives the witness the opportunity to explain
RULES GOVERNING CONDUCT OF CROSS EXAMINATION
Cross examination should be confined to put questions of fact
An advocate should not state what somebody else had said or is expected to say eg the defendant will say
Lengthy cross examination should be avoided for matters that are not really an issue
The advocate should avoid questions such as I suggest to you that and Do you ask the jury to believe that
Your role and duty as an advocate is not to abuse your role you must not make statements to insult, humiliate or annoy a witness
The judge has the discretion to prevent any cross examination if they consider it improper, unnecessary, improper or oppressive eg children or vulnerable witnesses
SCOPE OF CROSS EXAMINATION
Questions in cross examination are not restricted to matters raised in chief but may relate to any facts in issue or relevant fact or to the credibility of the witness
LEADING QUESTIONS
A witness under cross examination may be asked leading questions
This is so even if the witness appears to be more favourable to the cross examining party calling them
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