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Crim > 13. The rules relating to the examination of Witnesses > Flashcards

13. The rules relating to the examination of Witnesses Flashcards

1
Q

What is EIC?

A

Calling witness to elicit evidence supportive of party’s case.

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2
Q

what is the general rule for leading questions in EIC?

A

no leading = general rule.
Evidence elicited by leading questions = inadmissible

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2
Q

examples of when leading has been allowed in EIC?

A

where witness has already given evidence
to identify objects/persons
witness is hostile
formal intro matters - name address etc

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3
Q

when may leading questions be allowed?

A

if in interests of justice and at discretion of judge.

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4
Q

what rule governs memory refreshing?

A

s.139 CJA 2003

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5
Q

what conditions must be satisfied for court to allow memory refresh?

A
  • witness gives evidence that document records their recollection at time it was made AND
  • their recollection at that time is likely to have been significantly better than at the time of oral evidence
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6
Q

who can make an application for memory refreshing?

A

usually the advocate (almost always pros) but
judge can also if in interests of justice that they refresh.

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7
Q

when can a witness refresh their memory?

A

EIC or
Re-examination

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8
Q

what is meaning of verified document in memory refresh?

A

document = anything in which info recorded
verified = doc must either have been made by witness or if made by another witness must have verified it

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9
Q

can witnesses memory refresh out of court - before going to witness box?

A

Yes. Generally they are given their statements before going into box.

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10
Q

can witnesses discuss evidence with other witnesses?

A

No.
* do not discuss case;
* do not read statements to witnesses when other witnesses are present
if it happens and leads to fabrication = can dismiss evidence/direct jury as to weight.

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11
Q

can witnesses refresh memory out of court AFTER going into witness box?

A

yes in some cases they can leave the box to refresh from statement in peace.

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12
Q

can counsel for the opposition see memory refreshing documents?

A

if witness has refreshed out of court and before entering witness box, counsel can inspect memory refreshing doc and X-examine witness on the document.

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13
Q

what rule governs admissibility of previous complaints?

A

s.120 CJA 2003

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14
Q

when is a witness’s previous complaint admissible?

A

conditions:
* witness testifies that they made statement and it is true AND

  • witness claims offence committed against them;
  • offence is one to which proceedings relate;
  • complaint is about conduct whihc if proved would constitute the offence / part of it;
  • complaint was not made as a result of threat/promise and
  • witness gives oral evidence in connection with its subject matter.
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15
Q

what is the general rule about previous consistent (self-serving) statements?

A

witness may not be asked about previous statement which is consistent with their evidence nor can another witness enter it into evidence.

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16
Q

what are the exceptions to the exclusion of self-serving statements

A
  • accusation
  • to rebut recent fabrication
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16
Q

when will self serving statements be admitted via the accusation exception?

A

admitted as evidence to show the reaction of the accused when first taxed with the incriminating facts.

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17
Q

when will self serving statements be admitted via the recent fabrication exception?

A

can be 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.

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18
Q

when does the “recent fabrication exception” apply?

A

not enough for evidence to have been impeached in X. It will only apply where in X it is suggested that their evidence is a recent fabrication.

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18
Q

when are previous inconsistent statements admissible?

A

if witness admits making previous statement then it is admissible as evidence of matter stated.

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19
Q

which section governs previous inconsistent statements?

A

s.119 CJA 2003

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20
Q

who are inconsistent statements evidence against?

A

only evidence against maker. cannot be used against co-accused

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21
Q

if a witness says they cannot remember matters - can previous statement be inconsistent?

A

cannot be drawn where witness stands by what was said but just cannot remember.

22
Q

what is cross examination?

A

questioning of a witness by:
opponent to calling party or
any other party to proceedings?

23
Q

“any other party to the proceedings” means who can X-examine who?

A

accused can cross co-accused and any witnesses called by co-accused

24
Q

what is the sequence of cross examination?

A

pros and def witnesses cross examined by any co-accused in order names appear on indictment.

defence witness may be X-exam by pros after X by co-accused

25
Q

general rule for X-exam by accused?

A

accused entitled to X any pros witness

25
Q

what is the common law restriction to X by accused?

A

judge not obliged to give unrepresented accused freedom to ask any questions at whatever lengths

26
Q

what are statutory exceptions to X by accused?

A

accused cannot cross-examine:
* complainant of sexual offence
* protected witness

27
Q

what limits are on court appointed advocates?

A

do not have free-ranging remit to conduct the trial on accused behalf - role ends at end of X but they can stay pro bono if they want

27
Q

what happens when accused is prevented from x-examinign someone?

A

court MUST invite accused to appoint a legal rep.

if accused fails to AND court thinks in ints of justice, court MUST choose and appoint a legal rep.

28
Q

when can court use general power to stop accused X?

A

prohibit where:
quality of evidence is likely to be diminished by X and improved by direction AND
would not be contrary to ints of justice to prohibit

29
Q

what warning is given when accused not X-exam witness?

A

judge must give jury any warning necessary to ensure accused is not prejudiced by any inference from the fact X has been prevented/carried out by other legal rep

30
Q

what can judge do during X-exam?

A
  • may ask questions
  • may ask witness questions where accused is unrepresented and it is in interests of justice to do so
30
Q

what is the object of X-examination?

A
  • elicit from witness evidence supporting their version of facts in issue
  • weaken / cast doubt on accuracy of evidence given by witness in EIC
  • if appropriate, impeach witness credibility.
31
Q

what happens if you fail to put your case in X?

A

if do not X witness on a matter which you are proposing to call witnesses for, taken to accept truth of EIC in that matter and cannot invite jury to disbelieve it.

have to put something to witness if you want to rely on it later.

32
Q

what are the restrictions on cross-examination?

A
  • don’t cross on matters not in issue
  • questions should not be comments on facts –> confine to putting questions of fact
33
Q

what powers does judge have in relation to X questions?

A

judge can prevent any questions in X that are unnecessary, improper or oppressive.

34
Q

what power does judge have regarding timing of X?

A

judge can limit duration of hearing stage and X of a witness

35
Q

what is X examination as to credit?

A

purpose is to say that witness ought not be believed on oath

36
Q

general rule of finality of answers to questions on collateral matters

A

evidence is not admissible to contradict answers given by witness to questions put in X which are collateral (matters that go merely to credit but not relevant to issues of case)

37
Q

how can bias and impartiality dealt with?

A

evidence is admissible to contradict a witness who denies being bias and to show that the witness is prejudicial

38
Q

what is the scope of re-examination?

A

questions confined to any new matters arising out of X-exam.

39
Q

which witnesses are competent?

A

all witnesses regardless of age are presumed competent

40
Q

what needs to be shown if competence is put in issue?

A

will need to. show that witness can understand questions and give understandable answers

41
Q

what are special measures for?

A

to enable witnesses to give their best evidence

42
Q

who is trial process modified for?

A
  • those in fear
  • physical/mental disability
  • complainants of sexual offences
  • children
43
Q

what special measures can non-eligible witnesses have?

A

most other than live link/video recorded interview

44
Q

what special measures are available?

A
  • screens
  • live link evidence
  • evidence in private
  • removal of wigs and gowns
  • video EIC
  • video X & Re-exam
  • examination through intermediary
  • aids to communication
  • witness anonymity order
  • restricting reporting
  • complainant anonymity in sexual offences
45
Q

who is eligible for special measures?

A
  • all witnesses u18
  • vulnerable witnesses (mental/physical impairment)
  • witnesses in fear
  • adult complainants of sexual offences
  • any witness in a case involving a relevant offence
46
Q

what must court consider when giving live link direction?

A
  • circs of case and
  • be satisfied it is in interests of justice and
  • that all parties have had opportunity to make representations
47
Q

when can a party apply for a live link direction to be rescinded?

A

only if there has been a material change in circumstances.

48
Q

what circumstances do court consider when making live link direction?

A
  • availability of person
  • need for their attendance
  • their views
  • suitability of facilities
  • whether effective participation possible
  • importance of evidence
  • ability of other party to test their evidence
  • ability of public to hear/see proceedings
49
Q

when is an intermediary required?

A

court MUST appoint intermediary where D’s ability to participate is likely to be diminished by age or mental disorder or physical disability or
appointment necessary for effective participation

50
Q

when can intermediary order be varied/discharged?

A

material change in circumstances AND D would still be able to participate effectively without the order

51
Q

who is an intermediary?

A
  • person approved by court or
  • is asked to assess D’s communication needs or
  • appointed to facilitate D’s effective participation in trial
52
Q
A

Crim (27 decks)

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