Law of Evidence: Examination of Witnesses Study Notes

University of Huddersfield - BIL0086 Law of Evidence: Examination of Witnesses

Learning Outcomes

By the end of this session, you should be able to:

  • Understand the basic principles of examination-in-chief, cross-examination, and re-examination of witnesses.

  • Identify principles involved in refreshing witness testimonies, hostile witnesses, and reliance on previous consistent statements by witnesses.

  • Identify the questions that can be asked under cross-examination, who can cross-examine a witness, and special protection measures for specific classes of witnesses under cross-examination.

  • Discuss the case law surrounding the principles of examination of witnesses.

Outline

  • Introduction

  • Examination-in-Chief

  • Refreshing Witness Memory

  • Previous Consistent Statements

  • Hostile Witnesses

  • Cross-Examination

  • Who Can Cross-Examine?

  • Questions that Can Be Asked in Cross-Examination

  • Special Protections for Witnesses

  • Re-Examination

Introduction

  • The adversarial nature of trial in English law requires strict rules for examining witnesses.

  • Parties have autonomy over the examination of witnesses; however, adherence to prescribed procedures and rules is essential in eliciting facts from witnesses.

  • In both civil and criminal proceedings, all parties have the right to question any witness presented by any party involved.

  • Mandatory steps include:

    • Examination-in-chief

    • Cross-examination

  • Re-examination occurs at the discretion of the party that called the witness.

Examination-in-Chief

  • Definition: It is the questioning of a witness by the party who called them.

  • Can take place either orally (in criminal proceedings) or through written witness statements (in civil proceedings).

  • Its purpose is to elicit evidence favorable to the party, i.e., facts that support that party’s case.

  • In civil cases, a witness is sworn in or affirms their written witness statement, which serves as the examination-in-chief.

  • Criminal proceedings generally retain the oral examination-in-chief format, though principles mainly apply to these contexts.

Leading Questions

  • Definition: Questions that suggest the answer required or imply disputed facts that have not been confirmed by the witness.

  • Examples include:

    • "You were very drunk?"

    • "Were you drinking at that time?"

    • "Were you driving?"

  • Rules:

    • Leading questions are not permitted during examination-in-chief except for:

    • Purely formal or introductory matters (e.g., name, age, occupation).

    • Facts not in dispute (e.g., location/date of the crime).

    • Hostile witnesses.

  • Evidence obtained from leading questions is deemed admissible if warned.

Refreshing Witness' Memories

  • Situations often arise where witnesses struggle to recall details due to time elapsed since an incident, such as:

    • Incident occurring

    • Police interview

    • Statement/answers recorded

    • Trial date set 7 months later

  • Memory Refreshing Allowed: Witnesses can refresh memories using documents they verified or prepared previously, particularly under stress to recall facts.

Legal Guidelines for Refreshing Memory

  • Based on Lau Pak Ngam v R [1966], denying a witness to refresh memory may turn testimony into a test of memory instead of truthfulness.

  • Conditions:

    • The document must be created or verified by the witness.

    • Document was made when facts were still fresh in the witness's memory.

  • In R v Kelsey (1981), documents used for memory refreshing must be available for inspection by the opposing party, as per Beech v Jones (1848).

Criminal Justice Act and Memory Refreshing

  • The Criminal Justice Act (CJA) 2003 revised the common law position:

    • Section 139(1) includes:

    1. Document must be made or verified by the witness.

    2. Witness must orally confirm that the document captures their recollection from an earlier date.

    3. Witness must affirm they recollected better at that time compared to the present.

  • Notably, no longer a requirement for documents to be created when facts were fresh.

Previous Consistent Statements of Witnesses

  • According to common law, there exists a ‘rule against narrative’ whereby witnesses cannot create a narrative by referring to statements previously made outside of court.

    • Rule Against Narrative:

    • Prohibits witnesses from bolstering their evidence by reiterating prior consistent statements made out of court.

  • Differences:

    • Focuses on previous oral statements instead of documents.

    • Witness relies on the prior statement as truth, not for memory refreshing.

Previous Consistent Statements Under Law

  • Statutory Support: Section 120 of the Criminal Justice Act 2003 ensures examination parties cannot:

    • Ask if a witness previously made a statement asserting something to another person.

    • Introduce evidence of such assertions.

    • Call the third-party recipient of the assertion.

Exceptions to the Rule Against Narrative

  • Allegations of Fabricated Evidence: Previous statements can rebut charges of fabrication (s.120 CJA 2003).

  • Sexual Offences: Previous statements by sexual offense victims regarding facts and perpetrator identity can reinforce the complainant’s testimony (s.120(4) and (7)).

  • Previous Identifications: Where previous statements identify people or data, they may support the truth of the assertion.

  • Res Gestae: Statements may be admissible if part of the same transaction as the issue at hand.

Hostile Witnesses

  • Definition: A witness who is unfavorable to the party that called them.

    • The party can request court permission to attack the credibility by questioning and introducing evidence of previous contradictory statements.

  • Statutory Reference: Section 3 of the Criminal Procedure Act 1865.

  • Limitations: Evidence about a witness's prior convictions or bad character (s.100 of Criminal Justice Act 2003) cannot be introduced.

Key Principles in Examination-in-Chief

  • See Page 9 of Lecture Note.

Cross-Examination

  • Definition: Conducted by opposing party after examination-in-chief; aims to weaken or destroy opponent’s case or elicit favorable facts.

  • Participants: Other involved parties can cross-examine a witness.

    • If the accused testifies, they become subject to cross-examination by prosecution.

Who Can Cross-Examine?

  • All parties in the proceedings can cross-examine a witness called by one.

  • The accused can cross-examine either personally or through representation, even without counsel.

  • Legal Representatives: If the accused is unrepresented, it is mandatory to appoint counsel for cross-examination.

Exceptions to Cross-Examination Rights

  • Per Sections 34-39 of the Youth Justice and Criminal Evidence Act 1999 (YJCE), certain witnesses are shielded from personal cross-examination:

    • Complainants and witnesses in sexual offence trials must be represented by counsel during cross-examination.

    • Protection also applies to children and witnesses in serious cases like modern-day slavery.

  • The judge can restrict personal cross-examination based on witness credibility.

Questions That Can Be Asked in Cross-Examination

  • Leading Questions: These are permissible during cross-examination, allowing the examiner to lead the witness towards preferred conclusions and highlight factual credibility.

  • Types of Questions:

    • Questions pertaining to the facts in issue, assessing the truth and quality of the testimony.

    • Questions on the credibility of the witness to challenge reliability and character.

  • The witness’s answer concerning credibility does not stand as final, unlike responses related to the facts in issue, which can be revisited during re-examination.

Restrictions on Cross-Examination

  • The cross-examiner cannot bring new evidence that contradicts credibility answers but can bring contradicting evidence for factual issues (as per A-G v Hitchcock (1847)).

Conditions on Credibility Responses

  • Exceptions permitting evidence to contradict answers on credibility include:

    • Previous Convictions: Can be challenged if the witness disagrees (s.6 of Criminal Procedure Act 1865).

    • Physical or Mental Disability: Expert evidence can contradict the claim of a disability affecting reliability (Toohey v Commissioner of the Metropolis [1965]).

    • Bias or Partiality: Evidence can be introduced to show bias if a witness denies it (Thomas v David (1836)).

Previous Inconsistent Statements of Witness

  • Definition: When a witness makes contradictory statements, evidence can be introduced to challenge testimony.

  • Types of Evidence: Observations can involve witness statements, written records, etc.

  • Procedure:

    1. Statement presented.

    2. Denial recorded.

    3. Further evidence introduced.

  • Applicable Laws: Set out under sections 4-5 of the Criminal Evidence Act 1865 as well as relevant case laws such as R v Hayes and Brown v Dunn.

Effect of Failure to Cross-Examine Witness

  • If a party does not cross-examine a witness, it results in acceptance of their testimony. They cannot attack the testimony during closing arguments.

  • Consequences depend on total or partial cross-examination. If complete failure occurs:

    • Testimony may be deemed inadmissible or carry little weight unless significant to the case.

    • In R v Doolin (1832), testimony remained valid despite the witness's death before cross-examination due to judicial warning to jurors regarding its weight.

  • Total Cross-Examination Failure: Results in inadmissibility of central testimony.

    • R v Lawless (1993) exemplifies circumstances for total exclusion.

Partial Cross-Examination

  • If partial, judges can admit the evidence with cautionary instructions to the jury.

  • Previous cases (e.g., R v Stretton (1988) and R v Wyatt (1990)) illustrate permissible judicial warnings accompanying evidence admission under stress to witnesses.

Special Protection for Complainants in Sexual Offences

  • Sections 41-43 of the YJCE protect complaints, forbidding inquiries into personal sexual history or behavior during cross-examination.

  • Definitions and References:

    • 'Sexual behaviour' includes all sexual experiences, excluding events directly related to the case.

    • Cases such as R v Barnes (1994) and R v E (2005) confirm such protections.

Exceptions Regarding Sexual Behaviour and History

  • Questions regarding false allegations of sexual offenses do not fall under these protections.

    • As established in cases such as R v Garaxo (2005), evidentiary bases are required to explore assertions of false allegations.

  • Court Leave for Questions: Permitted under strict criteria relating relevance and to rebutting prosecution evidence, which may allow for queries against complainant's actions indirectly relevant to the case (R v L (2015)).

Re-Examination

  • Definition: The process following cross-examination where the party who called the witness reinstates their testimony.

  • - Purpose: To repair damage done during cross-examination and clarify uncertainties without introducing new subjects.

  • Important: Limited strictly to matters that arose during cross-examination; parties cannot reopen previous examination-in-chief (Prince v Samo (1838)).

Recap

  • Examination-in-chief involves questioning of witnesses by the party who called them, with possibilities for memory refreshing but restrictions on previous statements as proof unless exceptions apply.

  • Cross-examination follows, allowing opposing parties to strengthen their stance, with limitations on personal conduct for protected witnesses.

  • Key provisions relate to previous inconsistent statements, offering scrutiny over testimony credibility while respecting statutory protections.