Lecture 2B Witness Examination

Lecture 2B: Witness Examination

The accused is formally presented with the indictment, which is a legal document outlining the charges against them.
Upon reading the indictment, the accused is given the opportunity to enter a plea, which can either be Guilty, Not Guilty, or, in some jurisdictions, No Contest.

Jurors are selected and sworn in to serve for the duration of the trial, imparting on them the duty to impartially evaluate the evidence presented.

The prosecution delivers a structured opening statement that outlines the elements of the offence being alleged.
This address serves to introduce key evidence and witnesses that will be presented throughout the trial, aiming to establish a narrative that supports the prosecution's case.

The defence team may choose to deliver an opening statement, which typically offers an overview of their case and hints at the evidence and arguments they will present.

Prosecution witnesses are called to provide evidence that supports the prosecution's claims, potentially including eyewitness accounts, expert testimony, and physical evidence.

Following the prosecution's witnesses, the defence has the opportunity to call its own witnesses who may present counter-evidence or provide alibis for the accused.

After both sides have presented their evidence, the prosecution submits their closing statement first, summarizing their case and the evidence presented.
The defence follows with their closing statement, highlighting any weaknesses in the prosecution’s case.

The judge provides a summary of the evidence and legal principles relevant to the jury's deliberation, ensuring that jurors understand their responsibilities and the law.

The jury deliberates and ultimately delivers a verdict, which can be Guilty, Not Guilty, or, in some jurisdictions, a hung jury, meaning they cannot reach a unanimous decision.

If a Guilty verdict is rendered, the case moves to the sentencing phase, where the appropriate punishment is determined, which may involve fines, imprisonment, community service, or probation.

Testimonial Evidence: This is evidence given orally in court or in the form of written documents such as affidavits or witness statements. The credibility of the witness can significantly affect the weight of this evidence.
Documentary Evidence & Real Evidence: These types encompass records, photos, and physical objects presented in court, which must adhere to strict rules of relevance and authenticity to be deemed admissible. It is vital to establish that documents are genuine and accurately represent the facts they purport to record. This is particularly pertinent for expert evidence, as the qualifications of the expert must also be verified.

The court is constrained from considering information not formally introduced as evidence. An illustrative case is the Bilal Skaf case, which exemplified the necessity of following formal evidence channels to maintain the integrity of the judicial process.

The court retains the authority to regulate the conduct of questioning methods applied by both parties, including the permissible use of documents while questioning witnesses. This control protects against irrelevant or prejudicial questioning, ensuring that proceedings remain fair and orderly.

There is considerable flexibility in how parties may question witnesses, although they must adhere to any specific restrictions imposed by the court.
Witnesses are permitted to give their evidence in narrative form, should the court direct such an approach, and the use of visual aids like charts and summaries is allowed to enhance the jurors' understanding of complex evidence.

Three-Stage Process:
- Examination-in-Chief: The initial questioning of a witness, where leading questions (which suggest a specific answer) are strictly prohibited to allow the witness to provide their account freely.
- Cross-Examination: The opposing side questions the witness, utilizing leading questions to test the reliability and accuracy of their testimony.
- Re-Examination: The original party may further question the witness to clarify any points raised during cross-examination, using non-leading questions to ensure clarity.
- Limits on Re-examination (s39): Re-examination is only permissible on matters raised during cross-examination, barring court permission for additional queries.

Definition: These are questions designed to suggest a particular answer or assume facts that are in dispute. They play a critical role during cross-examination.
Guidelines for Questions: While leading questions are generally accepted in cross-examination, the court may disallow certain questions based on the witness's reliability, context, and potentially suggestive nature.

This principle mandates that a party must confront and question a witness regarding any evidence that contradicts their testimony during cross-examination. This gives the witness an opportunity to address discrepancies before such contradictions are used to suggest unreliability in their account.
Consequences of Non-compliance: Failing to comply with this rule may prevent parties from contesting the credibility of the witness, recalling specific witnesses, or excluding certain parts of their evidence.

Witnesses cannot use documents to refresh their memory without prior permission from the court, ensuring that all evidence presented is credible and structured.
Exceptions: Certain exceptions exist, notably for police officers providing testimony in prosecution cases who may utilize documentation in the course of their evidence.

Courts may grant permission for the questioning of witnesses who present unfavourable evidence or inconsistent statements to mitigate bias and explore the truth of the testimony offered.

The courts will disallow questions deemed misleading, confusing, excessively confrontational, or lacking a factual basis that might fall into biased stereotypes.

Witnesses are subject to cross-examination regarding prior inconsistent statements they have made. However, it is essential for cross-examiners to properly inform the witness about the context of these statements to maintain transparency in proceedings.