Rules on Examining Witnesses

Question 1

What is the purpose of XIC

Answer 1

Examination of witness by party calling them, to elicit evidence supportive of the party’s case.

Question 2

What are the general rules governing XIC

Answer 2

no leading questions - but may be allowed in the interests of justice
exception - lead on formal/introductory matters things not in dispute
exception - hostile witness

Question 3

In what circumstances can a witness be permitted to refresh their memory (s139 CJA 2003)

Answer 3

Prosecution witnesses only - no POE as makes it admissible
1 - witness gives evidence that the document records their recollection at the time
2 - this recollection is likely to have been significantly better at that time than now
judge retains discretion to refuse
(if oral - transcript of that can be provided)

Question 4

At what stage can a witness refresh their memory?

Answer 4

technically allowed at any stage - application made by advocate judge makes decision to allow

Question 5

What is a ‘document’ for memory refreshing purposes?

Answer 5

anything in which information of any description is recorded - not including sound recordings/moving images
must have been prepared by the witness or at least verified by them

Question 6

Is there anything preventing witnesses refreshing their memory before they go into the witness box?

Answer 6

no - normal practice for witnessess to be given copies of their statements before trial to refresh memory.
just cannot have oppo to compare with each other - general rule against discussing this.

Question 7

Must a witness remain in the witness box to read the previous statement?

Answer 7

no - in some cases it would be more appropriate for them to retire to read in peace or have it read to them in absence of jury - e.g dyslexic

Question 8

What is the consequence of memory refreshing - can it be cross-examined on?

Answer 8

Counsel may cross-examine on issues that evidence has been given on - if they seek to further examine another part of the statement not mentioned then the party calling the witness have the right to enter the whole statement in evidence

Question 9

When might a previous complaint be admissible as evidence?

Answer 9

if it meets these conditions:
- testifies that it is true to the best of their belief
-offence committed against them
- relates to proceedings
- complaint not made under any duress

Question 10

What is the general rule against previous consistent (self-serving) statements?

Answer 10

common law excludes them - means a witness cannot be asked about a previous oral or written statement that is consistent with their evidence
cannot be given to any other witness

Question 11

what are the exceptions to the general rule against admitted self-serving statements

Answer 11

complaints
previous identification and description
statements in rebuttal or recent fabrication
accusations
res gestate

Question 12

When might a statement made on accusation be admissible

Answer 12

where it is totally or partly inculpatory
if wholly exculpatory then it is ONLY admitted as evidence of the reaction not of facts within it

Question 13

What is the general rule against impeaching ones own witness and what are the exceptions?

Answer 13

cannot discredit own witness - but can raise some degree of bad character where linked to the case
Can only rectify issues cause by unfavourable witness by calling other evidence
Cannot prefer one account or other if contradictory/credible accounts are given - must both be disregarded
need special leave to prove a previous inconsistency
can cross examine if deemed hostile

Question 14

When should an application to treat a witness as hostile be made?

Answer 14

at first unmistakable signs of hostility
should consider asking for memory refresh first
judges discretion - is an example of it being granted for re-examination when no hostility demonstrated in XIC

Question 15

What is the role of the judge and jury in deciding whether a witness is hostile?

Answer 15

judges decision final - rarely open to successful appeal
should be considered in front of a jury when looking for evidence of demeanour

Question 16

What factors will a judge consider when measuring hostility?

Answer 16

whether witness is in a position to assist
previous accounts given
demeanour in witness box

Question 17

Who can challenge a hostile witness by calling other evidence?

Answer 17

any party

Question 18

Is a hostile witness open to XX on previous statement

Answer 18

yes - that could be ABE or written but it must be demonstrated that the witness did make the statement

Question 19

when does the judge have discretion to allow a witness to be cross-examined?

Answer 19

if witness professes to have no recollection or departs from the proof in favour of other side
NOT if witness simply refuses to answer

Question 20

Might an uncompellable spouse who has waived right to refuse be treated as hostile?

Answer 20

if nature of evidence justifies it - and ideally judge has explained they will be treated like any other witness - statement may be admissible in some circs.

Question 21

What is the purpose of allowing rebuttal against accusations of recent fabrication

Answer 21

admitted as truth of its contents and to support witness creidbility

Question 22

where does principle of recent fabrication have no application

Answer 22

where the case is that is has been fabricated from the outset

Question 23

what is touchstone for deciding on ‘recent’

Answer 23

whether there is a rational basis for its’ use as a tool for deciding where truth lies

Question 24

When is a previous written or oral inconsistent statement admisisble

Answer 24

when witness admits making it - evidence of any matter of oral evidence given
admissible for truth of its’ contents - if it implicates a co-accused it does not allowit to be used against co-accused

Question 25

What is XX

Answer 25

questioning of a witness by any opponent party/any other party to proceedings.
use of leading questions
follows XIC - XIC can simply be name

Question 26

What order is XX handled in?

Answer 26

normally in order running on indictment

Question 27

What are the constraints on an accused conducting XX in person?

Answer 27

Judge not obliged to give them unlimited time to ask whatever questions they like.
YCJEA 1999 s34 - no person accused with sexual offence
s35 - no person charged with specific offence can XX a protected witness
S36 general power to give direction prohibiting if quality of evidence likely to be diminished and it would be contrary to interests of justice

Question 28

What can an LIP do to further XX in circs where they are not permitted to?

Answer 28

court should appoint an advocate - who is not technically beholden to the client and should leave post XX but can stay if they wish to assist pro bono

Question 29

What is purpose of XX?

Answer 29

elicit from witness supporting evidence for XX’ing party’s case
weaken or cast doubt on the accuracy/reliability of XIC
impeach credibility of witness in some circs

Question 30

What is the role of the judge in XX?

Answer 30

ask questions where not represented
if competent advocate in place - judge should not intervene save to clarify matters for jury
judge allowed some transgression but must be careful not to render XX ineffective as it would lead appeal route open
can ask qs on particular issues not touched upon at the end
impose time limits
protect vulnerable witnesses/children

Question 31

when might it be considered a judge has ‘descended into the arena’ ?

Answer 31

whether trial is rendered unfair given scale and content of judicial intervention

Question 32

What is the effect of failing to XX a witness on a point we wish to contradict?

Answer 32

cannot invite jury to disbelieve it later
witness needs oppo to answer case
controls in place to protect children/vulnerable witnesses who would struggle to understand/follow lead - judge responsibility

Question 33

What are key principles governing XX

Answer 33

leading questions - treated with courtesy
can ask questions on any relevant matter
exclusionary rules of hearsay, opinion and privilege apply
judge has power to limit time on peripheral issues
can seek to call into question credibilty of witness
bad character cannot be introduced unless by application

Question 34

What is the rule of finality on collaterol matters?

Answer 34

not admisisble to contradict a witnesses answer to questions on collaterel matters
test for collaterel - if matter on which you would be allowed to prove on part, in such connection with issues

Question 35

can evidence be called on bias?

Answer 35

where it falls within necessary statutory provisions - to contradict witness’ denial of bias or partiality

Question 36

When can evidence be adduced on bribes

Answer 36

where proof exists and witness has denied ACCEPTING a bribe

Question 37

evidence of a quarrel includuing threat of revenge admisisble

Answer 37

yes - case of Shaw - bias principle

Question 38

What happened in the case of Mendy?

Answer 38

D accused of assault, witnesses excluded from court, man in public gallery was taking notes and relaying them to a witness - evidence of this allowed although denied

Question 39

What is purpose of re-examination

Answer 39

any party who calls a witness can call a witness again to re-examine them on things that came up in XX - should be confined to these matters and immediately relevant issues
can memory refresh

Question 40

What is the litmus test for special measures?

Answer 40

whether it will maximise quality of evidence
flexibility encouraged
under 18s rebuttable presumption that video link suitable

Question 41

what special measures are available for vulnerable/intimidated witnesses?

Answer 41

screening
live link evidence
private evidence
removal of wigs and gowns
recorded XIC
recording of both XIC and XX
intermediary
aids to communication
witness anonymity

Question 42

what other protective procedures exist?

Answer 42

restricting reporting and public access
complainant anonymity in sexual offence cases
prohibition of XX by accused in certain cases - inc child sexual offence/abduction etc adult sexual offences witrnesses of DV
pre trial depositions of young persons

Question 43

what are general eligiblity categories for D witnesses

Answer 43

all witnesses under 18 at time of hearing or recording
vulnerable witnesses (phys/mental)
witnesses in fear or distress
adult complainants of sexual offence or Modern Slavery offences
any witnesses to a ‘relevant’ offence - homicide, firearms/knife crime
any others - diminished quality test

Question 44

What must a court consider when deciding whether to grant live link?

Answer 44

all circs of case and interests of justice, whether youth offender team have made reps
availability of perosn
need for them to attend
person’s views
suitability of live link facilities
would it enable effective participation
importance of any witness and impact of link on that
arrangments for public viewing

Question 45

when can a D get an intermediary

Answer 45

where it facilittes effective participation
MUST where
1- D’s ability to participate likely to be diminished by reason of age or mental health
2 - it is necessary to facilitate participation

Question 46

what rules are there for intermediaries

Answer 46

duty to the court
impartial
assist Ds effective participation
can be used at trial where ABE did not
help judge determine what qs should be allowed