The Rules relating to the Examination of Witnesses

Question 1

What’s Examination in chief?

Answer 1

o Examination in chief (XiC) is the examination of a W by the party calling them

o Object = elicit evidence supportive of the party’s case

Question 2

Are leading questions permissible during Examination in chief?

Answer 2

Generally impermissible

Does not result in inadmissible evidence but weight attached to it is reduced

Question 3

During Examination in chief there are 3 situations where leading questions are permissible. Can you name them?

Answer 3

(1) Qs re: formal/introductory matters (e.g. W’s name, address, occupation) or re: facts not in dispute / are merely introductory to Qs about disputed facts

(2) Qs asking W to identify person/object in court

(3) party calling W is given leave to treat W as hostile

• Court may also allow in its discretion in other cases, when in interests of justice:

e.g. Mag dies in course of a case in which a W has given evidence;

W, when recalled before a new magistrate, may be asked whether the deposition represents their evidence

Question 4

What are the 2 condition where a Witness may refer to a doc to refresh memory in course of giving oral evidence?

Answer 4

(1) W states in their oral evidence that the doc records their recollection at time it was made

(2) their recollection at that time is likely to have been significantly better than at the time of oral evidence

• Where earlier account contained in a sound recording, can refresh memory instead from a transcript

*NB: trial judge has residual discretion to refuse even if conditions met

Question 5

Who can refresh their memory during oral evidence? When can they do this?

Answer 5

Who - Anyone giving oral evidence, incl. A

When - Anytime (XiC, XX, RX)

Question 6

There must be an application to refresh the memory during oral evidence. who can do this?

Answer 6

Usually made by advocate

Can also be suggested by judge where in interest of justice

Question 7

What’s the content of the memory refreshing document and who has to prepare it?

Answer 7

Memory refreshing doc - anything in which info of any description is recorded

• Does not include sound recordings or videos (unless recorded interview)

MUST be prepared by either:

1) prepared by W himself, or

(2) prepared by another, but verified by W (e.g. statements to police)

Question 8

The witnesses needs to refresh their memory. They are in the W box. Can they read the document?

Answer 8

May be allowed to withdraw from box & read statement in peace

• If W has SLDs = can withdraw or statement can be read to W in absence of jury

Question 9

Prior to going into W box, can W refresh their memory?

Answer 9

Yes they can BUT:

• Ws should not be allowed to discuss/compare with each other

Question 10

W refreshed their memory prior to going into W box and they discussed/compared w/ other Ws - this emerged during XX of Ws. What is the main issue here? And can it be fixed with a judge direction?

Answer 10

Fabrication - court may decide that it would be unsafe to leave any of the Ws’ evidence to the jury

May be fixed by directing the jury on the possible implications for the reliability of the evidence

Question 11

The W watched visually recorded interview at different time as the court. What’s the procedure here?

Answer 11

Before XX, W will be asked if + when they watched the recording

Question 12

Ws with a SpLD requests to refresh her memory because they cannot read under pressure. What are the options here?

Answer 12

1) statement can be read to W in the absence of jury
2) W can leave W box and read statement outside of court

Question 13

Can the W be XX on memory-refreshing doc read out of court/ before entering W box ?

Answer 13

P & other party entitled to inspect the memory refreshing doc + XX the W on relevant matters

if the cross-examination is upon material which has not been referred to by the witness, then the party calling the witness is entitled to put the document into evidence .

▪ If W does not refer to material outside of doc = doc does not become evidence in the case

▪ But if XX’ed on material not referred to by W = party calling W entitled to put doc in evidence

Question 14

In what context can previous complaints be used?

Answer 14

Example = you tell a friend that 3 months ago A sexually assaulted you: that previous complaint is admissible as evidence of truth of matter stated

Question 15

Previous complaints are admissible as?

Answer 15

(1) evidence of matters stated, and
(2) goes to consistency of W

Question 16

What are the 6 situations where W’s previous complains can be admissible? CJA 2003, S 120 by section number!

Answer 16

(1) he testifies that to best of his belief he made the statement, & it is true - s.120(4)(b)

(2) he claims that an offence was committed against him - s.120(7)(a)

(3) offence is one to which the proceedings relate (offence on the indictment ONLY) -s.120(7)(b)

(4) complaint (whether made to a person in authority or not) is about conduct which would constitute the offence or part of the offence - s.120(7)(c)

(5) complaint not made as result of a threat or promise - s.120(7)(e)

(6) before statement adduced, W gives oral evidence in connection w/ its subject matter
- s.120(7)(f)

Question 17

What’s the general common law rule against previous consistent (self-serving) statements?

Answer 17

general common law rule excludes previous oral/written statements made by W & consistent with his evidence bc hold no evidential value (both as evidence of the truth of the matter & that they were said)

• Evidence of previous statement may also not be given by any other W

Question 18

When does the rule against previous consistent (self-serving) statements applies?

Answer 18

Anytime (XiC, XX, RX)

Question 19

Previous consistent (self-serving) statements are inadmissible as?

Answer 19

(1) evidence of facts stated in it (unless admissible under s 114 hearsay), and

(2) evidence of W’s consistency/credibility

E.g. D convicted of murder of V by shooting; pleaded defence was ‘accident’; evidence that told dad 2 days after incident that this would be his defence = excluded: did not confirm D’s evidence

Question 20

In what 4 situation are previous consistent (self-serving) statements admissible?

Answer 20

(1) complaints of offence on indictment (previous complaints)

(2) previous ID & description

(3) statements in rebuttal of allegations of recent fabrication

(4) Self- serving statements made on accusation by PO

Question 21

When are statements in rebuttal of allegations of recent fabrication admissible?

Answer 21

i.e. that W’s oral evidence was recently fabricated

1) Admissible for truth of its contents (i.e. evidence of matters stated in it) + W’s credibility

If W accused in XX of recently making something up (i.e., not merely that evidence is impeached in XX) = consistent statement made at an earlier date is admissible in RX in order to rebut + confirm W credibility

The effect of s.120(2), CJA 2003 is to make the evidence in rebuttal of that allegation evidence of “any matter stated”

Question 22

When are self- serving statements made on accusation by PO admissible? 4 situations

Answer 22

1) If wholly adverse → evidence of truth of contents

2) If mixed statement → evidence of truth of (all of) contents

3) Mixed statements are admitted as evidence of the truth of both parts of the statement, both inculpatory and exculpatory

4) Purely self-serving → not evidence of truth of contents, but of the reaction of A when first taxed with the incriminating facts

NB Reaction of the accused to being first accused of offence is always admissible if wholly exculpatory – as evi of reaction, not as evi of the truth of what is said

Question 23

What’s the general rule against counsel impeaching credit of own W?

Answer 23

Party may not impeach credit of own W by asking leading Qs / adducing evidence re:
1) bad character
2) previous convictions or
3) bias/previous inconsistent statements

Applies to W ‘unfavourable’, i.e. W not hostile but their evidence does not come up to proof/unfavourable to party calling W (only remedy = call other Ws to prove what the unfavourable W failed to establish)

Question 24

What’s the exception against the general rule of Counsel impeaching credit of own W? The evidence may be adduce if/bc …

Answer 24

1) supports another discrete part of P case (i.e. not for purpose of impeaching W’s credit)

P may call W to give evidence, they may choose only to rely on part of that evidence + adduce other evidence to contradict the part they chose not to reply on + invite jury to reject.

Can be done w/o treating W as hostile —unless hostile, evidence adduced to contradict cannot include previous inconsistent statements

Question 25

When does a W turns hostile?

Answer 25

W deliberately not desirous of telling the truth to the court at instance of party calling him

Question 26

What must the judge consider when assessing whether a W is hostile? 4 criteria

Answer 26

(1) whether W is in a position to assist

(2) whether W has indicated willingness to assist

(3) any previous accounts given by W, and

(4) demeanour in W box

• But issue does not depend solely on whether W has been previously inconsistent in a written statement / in evidence on oath

Question 27

Your W turns hostile. You need to prove their inconsistent statement. What can you do?

Answer 27

(1) May call other Ws to ‘contradict’ a hostile W (i.e. same rule as applies to ‘unfavourable’ Ws)

(2) With judge’s permission, may prove an inconsistent statement of the W (i.e. put it to him & XX on inconsistencies)

(3) May XX by asking leading Qs

Question 28

Your W turns hostile. Do you need to make an application to treat them as hostile W?

Answer 28

There’s 3 situations:

1) When W first shows unmistakable signs of hostility you make a formal application

2) W is so hostile that the only appropriate course if to treat as hostile. i.e. W gives evidence contradicting earlier statement / fails to give expected evidence, party calling W & judge should first consider inviting W to refresh memory

3) Rare: you apply to treat as hostile during RX a W who showed no signs of hostility during XiC
- Fist invite W to refresh memory and not treat them as hostile immediately

Question 29

What the role of judge and jury when deciding a formal application to treat the W as hostile?

Answer 29

Judge:
- hears and decides in absence of jury (but evidence/demeanour of potentially hostile W should usually be tested in jury’s presence)

Discretion of judge = absolute (appeals against decision rarely successful)

Question 30

Is it the judge discretion to weather W has turned hostile or no?

Answer 30

Yes, absolute discretion.

Judge can allow XX when W claims no recollection/ inconsistent statements (w departs from proof favouring the other side, or expresses reluctance)

Competent but not compelled spouses or civil partners as P Ws + waive right to refuse testimony = hostile. Judge should explains to Ws in the absence of the jury before oath.

Question 31

What’s the sequence for cross examination?

Answer 31

Defendants and defence witnesses are cross-examined first by co-defendants in the order in which they appear on the indictment and finally by the prosecution.

The case for each defendant is heard in full – just like the prosecution case. So D1 gives evidence first followed by all of his or her witnesses. Then the whole case for D2 is heard, and so on.

Question 32

During XX your W admits making a previous (oral/written) inconsistent statement - is it admissible?

Answer 32

Yes, statement is admissible as evidence of matters stated [i.e. the truth of contents, as against its maker]

Question 33

W gives evidence that cannot remember matters in previous statement or/and stands by that previous statement even if they don’t remember. How do you call those statements?

Answer 33

Both not necessary inconsistent

Question 34

W denies truth of earlier statement. Is it a inconsistent statement?

Answer 34

Yes

W to be treated as hostile on the basis that in all the circumstances of the case he is likely to be able to remember the matters in question & by claiming not to be able to do so, is not willing to tell the truth to the court

Question 35

During XX, who can question a W?

Answer 35

(a) The opponent of the party calling him, or

(b) Any other party to proceedings
- A has right to XX a co-A who has chosen to give evidence (& any Ws called by co-A), whether or not unfavourable to A

• Case for each D is heard in full – just like the P case. So D1 gives evi first followed by all of their Ws. Then the whole case for D2 is heard, and so on.

Question 36

What the aim to XX?

Answer 36

(1) elicit evidence supporting XX’ing party’s case

(2) weaken/cast doubt on evidence given by the W in chief

(3) where appropriate, undermine W’s credibility

Question 37

When does XX happens?

Answer 37

Usually immediately after XiC, but Ws sometimes merely tendered by P for XX (called, sworn, asked no Qs in chief other than name/address & then XX’ed by D)

Question 38

What’s XX sequence in Mags and CC?

Answer 38

Mags
→ ‘every other party may ask Qs in XX’

CC
→ P W: XiC, each co-A in order their names appear in indictment
· → D W: XiC, each co-A “”, P

Question 39

What’s the general rule to XX by LIPs? What’s the Common Law exception?

Answer 39

General rule: accused can XX any W called by P in person

Common law exception:
Trial judge need not let unrepresented A ask whatever Q, at whatever length, he wishes

Question 40

There 3 statutory exceptions that protects Ws from XX by A in person. Which are they?

Answer 40

(1) If A charged w/ sexual offence & W = victim, in re: that offence or any other offence charged

(2) If A charged w/ specified offence and W = ‘protected W’, in re: that offence or any other offence charged

(3) General discretion to prohibit if:

(a) quality of evidence given by W likely to be diminished by the XX & likely to be improved by making a direction to prohibit [having regard e.g. to the Qs likely to be asked], and

(b) it would not be contrary to the interests of justice

Question 41

What does the judge must do where A prevented from XX’ing a W in person?

Answer 41

(1) Court must invite him to appoint a legal representative
- If he doesn’t, & in interests of justice for W to be XX’ed = court must choose & appoint a rep w/ specific duty of XX’ing particular W

(2) Judge must give jury any warning necessary to ensure A not prejudiced by any inferences drawn from fact that such XX has been prevented / is being conducted by court-appointed advocate on his behalf

Question 42

Can the judge ask own questions matters not touched on at end of XX / XiC?

Answer 42

Yes

BUT

Where XX conducted by competent advocate = generally should not intervene except to clarify matters he/jury may not understand

should not be criticised for occasionally piping up — but if judge interrupts very frequently, conviction may be appealable (wrong for judge ‘to descend into the arena and give the impression of acting as advocate’)

Question 43

Can the judge ask own questions where XX is conducted by a LIP?

Answer 43

judge may ask any Qs of Ws as are necessary in A’s interests

Question 44

Is counsel permitted using leading Qs during XX?

Answer 44

Yes - Qs must be conducted with restraint, courtesy & consideration

Scope:
- Not restricted to matters raised in chief
- May relate to any fact in issue (or relevant fact), or to the credibility of the W

Question 45

Counsel should not use leading Qs to…

Answer 45

1) Comment on facts

2) Frame Qs so as to invite argument (e.g. ‘do you ask the jury to believe that..’)

3)State what someone has said / is expected to say (applies also to Qs by judge)

4)Generally, make statements/ask Qs merely to insult / humiliate / annoy W

Question 46

Do the rules of hearsay / opinion / privilege etc. apply to XX ?

Answer 46

Yes, they are exclusionary rules of evidence.

E.g. A cannot be XX’ed by P in such a way as to reveal that he made an previous inadmissible confession

Question 47

What are the grounds a judge can restrict XX of W?

Answer 47

(1) XX is too long

(2) Qs seek to elicit inadmissible hearsay

(3) “ inadmissible evidence of bad character of any person.

(4) “ matters that are protected by privilege

(5) “ inadmissible opinion evidence

(6) Qs are asked merely to insult, humiliate or annoy the witness

(7) Qs are improper or oppressive

(8) Counsel is commenting on evi , rather than asking Qs

Question 48

Can W be XX’ed on matters affecting their credibility?

Answer 48

yes - on means of knowledge of facts to which he has testified to:
1)opportunities for observation
2) powers of perception,
3) quality of memory
4) mistakes,
5) omissions & inconsistencies in evidence / previous statements that relate to W’s likely standing w/ the jury (but which are not ‘relative to S-M of the indictment’).

· Re: memory – risk of ‘contamination’/collusion where officers have conferred in producing statements about events or interviews
· Re: omissions – sexual offences cases where A says C made it up, may be XX’ed as to what facts are known to him that might explain why C would make a false accusation
· Re: sex cases – D can undermine credibility of C by XX’ing on any delay, but judge should direct jury that some feel shame/shock & a late complaint = not necessarily false

Question 49

Can W be XX’ed on previous convictions/bias?

Answer 49

▪ Subject to rules on bad character evidence
▪ As applies to any mental/physical disability affecting reliability & any previous inconsistent statements made by W ‘relative to the subject-matter of the indictment’
▪ If W denies any of these matters = XX’ing party entitled to prove them

Question 49

What’s the exception to the rule of finality?

Answer 49

Evidence is admissible to contradict W’s denial of bias/partiality towards a party / show W is prejudicial concerning case being tried

· E.g. if denies disliking a party, evidence can be adduced of his dislike
· E.g. evidence to contradict W’s denial that offered a bribe = generally inadmissible; however evidence to contradict W’s denial that accepted a bribe = admissible b/c shows partiality

Question 49

What’s the general rule of finality of answers to Qs on collateral matters?

Answer 49

Evidence is not admissible to contradict/rebut As given by a W to Qs put in XX which concern collateral matters (i.e. matters which go merely to credit but which are otherwise irrelevant to the issues in the case)

So general rule = party cannot call evidence to rebut an A he doesn’t like

• But NB sometimes a difficult line to draw in practice, e.g. has been allowed to show that Vs may have been offered money to fabricate evidence & where in fact relevant to the defence, i.e. that the allegations were fabricated

Question 49

What’s the sequence, form and scope of Re-Examination?

Answer 49

Sequence:
- After XX, W may be re-examined by calling party
▪ Applies also to hostile Ws, & Ws called by P solely to be XX’ed by D

Form:
- XiC rules
Leading Qs = not permissible
R may refresh memory if necessary

Scope:
- Confined to matters which arose out of XX, except w/ leave of judge

• Where W under XX gives evidence of part of a conversation on some previous occasion, questions may not be asked in RX about everything else that was said at the same time — only about those parts of the conversation arising from XX (unless other parts explain/qualify what was said)

Question 49

Must the trial be adapted to needs of children and vulnerable Ws to facilitate their participation?

Answer 49

Yes

Question 49

What must the court consider in terms of arrangements to ‘maximise the quality of the evidence’?

Answer 49

Available measures (in all courts; court can adopt a combination):

1) Screening W from A

2) Giving evidence via live link, accompanied by supporter

3) Giving evidence in private (in sex offence, modern slavery, human trafficking cases / where fear of W intimidation)

4) Removing wigs & gowns whilst W gives evidence

5) Video recording of XiC, and (where XiC has been recorded) XX & XE

6) X’ing W through an intermediary (young/incapacitated W)

7) Providing aids to communication (young/incapacitated W)

8) W anonymity order

Question 50

Court can put in place protective procedures for vulnerable Ws and Ws in fear. What are they?

Answer 50

(1) Reporting/public access restrictions, to protect fearful/distressed adult W’s identity (where likely to improve quality of W testimony/cooperation)

(2) Complainant anonymity in sex cases

(3) Prohibiting XX by A in person of adult Ws in sex cases & of child complainants / Ws in sex/violence/cruelty/kidnapping/false imprisonment/abduction cases

(4) Use of pre-trial depositions of children / young people

Question 51

Whats the eligibility criteria and process for special measures + other protective procedures re vulnerable Ws and Ws in fear?

Answer 51

(1) U18 Ws at time of hearing/video recording

(2) Vulnerable Ws affected by mental/physical impairment

(3) Ws in fear / distress about testifying – n/a = intermediary + aids to communication

(4) Adult complainants of sex/Modern Slavery Act offences / domestic abuse
- Adult complainants of sex offences have unqualified right to opt out

(5) Ws in a case of ‘relevant offence’ (incl. homicide, firearms, knives) — can opt out

Process (for 1, 2, 3)
- Test = whether the quality of the evidence would be diminished by the W’s condition
- Take into account views of W
- Make a declaration of eligibility
- Consider which special measures will maximise the quality of W evidence

Question 52

In order for an application by D to testify by live link (in CC or Mags), the court must be satisfied that? (vulnerable Ds)

Answer 52

(1) in the interests of justice, and

(2) would enable A to participate more effectively as a W — whether by improving quality of evidence or otherwise — because:

(a) if A = U18 →
- Ability to participate effectively as a W giving oral evidence is compromised by ‘level of intellectual ability or social functioning’ (so higher threshold than merely juvenile & nervous)
B) if A = adult →
- Unable to participate effectively as a W giving oral evidence b/c has a mental disorder or ‘significant impairment of intelligence & social function’

Question 53

Court, CC or Mags, court must exercise inherent power to appoint intermediary for vulnerable Ds where 2 criteria met. What are these?

Answer 53

▪ (1) D’s ability to participate likely to be diminished by reason of —
* U18: age
* Adult: a mental disorder / physical disability/disorder
▪ (2) appointment is necessary for purpose of facilitating effective participation

• Court may not vary/discharge an intermediary order unless satisfied that since the order was made D’s communication needs/other material circumstances have changed materially, & D would be still able to participate effectively w/o the order
• If court’s assessment = no need for an intermediary, may instead recommend ground rules for conduct of the trial, taking into account how all evidence is led throughout the trial to enable D to understand & participate in the proceedings

Question 54

What are the role and duties of Intermediaries for vulnerable Ds?

Answer 54

Role = people either:
1) approved by the court, or
2) asked to assess a D’s communication needs, or
3) appointed by the court to facilitate a D’s effective participation in the trial, when D gives evidence or at any other time, where otherwise that D’s communication needs would impede such participation

• Owe duty to the court & independent of the parties
• They must assist the court to achieve the OO, including:
  1) continually assessing W / D’s ability to participate & intervening if necessary
  2) explaining to D, in understandable terms, what is said & done by other participants — i.e. assist in communication of evidence
• Cannot be asked to provide expert testimony, opinions regarding W reliability or D’s fitness to plead
• In practice, advocates put their Qs directly to W, & intermediary intervenes only where miscommunication is likely to have occurred