EXAMINATION OF WITNESSES IN CRIMINAL PROCEEDINGS

EXAMINATION OF WITNESSES IN CRIMINAL PROCEEDINGS

EXAMINATION IN CHIEF This is examination of a witness by/on behalf of the party who called him. Thus, a prosecution witness is examined in chief by counsel for the prosecution and a defence witness is examined in chief by counsel for the accused who called the witness

Leading questions A leading question is a question which either suggests the desired answer or suggests the existence of facts of which the witness has not testified As a general rule, leading questions should not be asked during examination in chief, though there are exceptions (e.g. introductory matters, matters which are not in dispute and by agreement of the parties) and the judge does possess discretion to permit the asking of leading questions during examination in chief in the interests of justice

D is charged with the indecent assault of C. C is called as a witness for the prosecution and the first question she is asked by counsel for the prosecution during examination in chief is “what did you do when the accused touched your breast?” Which of [a]-[c] is true? [a] The question is a leading question but counsel is normally entitled to ask leading questions during examination in chief [b] The question is a leading question and counsel is not normally entitled to ask such questions during examination in chief [c] The question is not a leading question [b] is true

Memory refreshing before the witness goes into the box A witness may read through a statement which he made reasonably close to the events which it documents before going into the witness-box (e.g. a statement made to the police) This may affect the weight of the evidence so the prosecution should inform the defence when a prosecution witness has read through his statement. Witnesses should not be permitted to discuss their evidence with other witnesses or to read or hear the statements of other witnesses

Saleem is to be called as a witness for the prosecution at a murder trial. Before going into the witness box, Saleem reads through his police statement. True/False? A witness should never be permitted to read through his statement before he goes into the witness box False

Memory refreshing in the witness box (criminal proceedings) s.139(1) CJA 2003 A witness giving oral evidence about a matter may memory refresh in criminal proceedings from a document which he made or verified at an earlier time if: he testifies that it records his recollection of the matter at the earlier time; and his recollection of the matter is likely to have been significantly better at the earlier time than it is when he testifies. Document includes anything in which information is recorded but not a recording of sounds or moving images (s.140) (i.e. can’t memory refresh from recordings)

Memory refreshing in the witness box (criminal proceedings) s.139(1) CJA 2003 (cont) S.139(2) permits memory refreshing from transcripts of sound recordings if equivalent conditions satisfied

Memory Refreshing in Civil Proceedings • The position is still governed by the common law • A witness may memory refresh in civil proceedings if the document was contemporaneous (i.e. was made while the facts were still fresh in his memory) and either the witness made the document or he verified it (i.e. he read it or had it read to him and confirmed it) whilst the facts were still fresh in his memory • Contemporaneity is a question of fact and degree (i.e. it is not a rigid concept) • The court possesses discretion to permit memory refreshing from a non-contemporaneous document

Inspection of memory refreshing documents They may be inspected by the other party and the witness may be cross-examined in relation to them, if cross-examination is relevant

Admissibility of memory refreshing documents • Memory refreshing documents not normally admissible, though there are exceptions, i.e. • where the witness is cross-examined on parts of the document which were not used for memory refreshing and the party who called the witness desires its admission; or • where it is suggested during cross-examination that the document was fabricated; or • where the evidence of the witness is inconsistent with the document; or • where it is difficult for the jury to follow cross-examination without a copy.

Admissibility of memory refreshing documents (continued) • Where a witness is cross-examined on a memory refreshing document which, consequently, is received in evidence, the statement is admissible as evidence of any matter stated of which the witness’ oral evidence would be admissible • It is admissible in criminal proceedings under a hearsay exception created by CJA 2003 s120; in civil proceedings the position is governed by s.6(5) Civil Evidence Act 1995.

Asoka, aged 70, witnesses a murder. Several days later he makes a statement to the police which he dictates, checks and signs. He is called by the prosecution, testifies that his police statement records his recollection of the murder at the time when he made it and is permitted to memory refresh when he testifies. Which of (i) to (iii) is/are true? (i) Memory refreshing should not have been permitted because the document was made several days later (ii) Asoka may be cross-examined on inconsistencies between his evidence and the document (iii) The document may become admissible (ii) and (iii) are true During cross-examination, defence counsel puts inconsistencies between his evidence and the memory refreshing document to Asoka. The judge admits the document in evidence.

Previous statements made by witness in criminal proceedings who cannot reasonably be expected to remember the matters stated well enough to give oral evidence thereof • If the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them well enough to give oral evidence of them in the proceedings and cannot reasonably be expected to do so; and • he testifies that, to the best of his and belief, he made the statement and it states the truth; then • the statement is admissible (under a hearsay exception created by CJA 2003 s.120) as evidence of a matter stated of which his oral evidence would be admissible

Sean, aged 80, witnesses a robbery and, that day, makes a statement to the police which he checks and signs. By the time of the trial, more than two years later, Sean, whose memory is very poor, cannot remember the details of the robbery but testifies that, to the best of his belief, he made the statement and it states the truth. Which of [a] or [b] is true? [a] Sean’s police statement may be admissible under a statutory hearsay exception [b] If Sean is incapable of remembering the facts even if he is allowed to memory refresh then his hearsay evidence will be inadmissible. [a] is true

Previous consistent statements (i.e. “self serving” statements) These are previous oral or written statements which are consistent with their maker’s testimony in court As a general rule such statements are not admissible in criminal proceedings, but this is subject to exceptions

Previous consistent statements Exceptions to the general rule in criminal proceedings The major situations in which previous consistent statements are admissible in criminal proceedings are: to rebut a suggestion of recent fabrication; where the statement identifies or describes a person, object or place; where it a complaint made by the victim of an alleged offence or where it is a wholly exculpatory statement made by the accused

Recent Fabrication A previous consistent statement is admissible under a hearsay exception created by CJA 2003 s.120 as evidence of matters stated of which its makers’ oral evidence would be admissible to rebut a suggestion made during cross-examination that the witness’ oral evidence was fabricated

Wasim is charged with robbery in Newcastle. Several days after the robbery, Wasim told Brad that he had been in London on the day of the robbery. At his trial, Wasim intends to testify that he was in London on the day of the robbery and intends to call Brad to repeat the statement he made to him. Which of (i) to (iii) is true? (i) The statement is a previous consistent statement (ii) The statement will be admissible if, when the prosecution cross-examine Wasim, they assert that his alibi was a recent fabrication (iii) If the statement is admissible it is admissible to prove that Wasim was in London at the relevant time They are all true

Statements identifying or describing persons, objects or places A previous consistent statement is admissible under a hearsay exception created by CJA 2003 s.120 as evidence of matters stated of which its maker’s oral evidence would be admissibleif it identifies or describes a person, object or place. The hearsay exception only applies if the witness testifies that, to the best of his belief, he made the statement and it states the truth

Kevin witnesses a robbery and identifies Lorna as the robber at a video identification procedure. He also tells P.C. Smith that the robbers car registration number was L123. At Lorna’s trial Kevin is permitted to give evidence of the police station identification of Lorna and to testify that the person in the dock (i.e. Lorna) is the robber and PC Smith is permitted to repeat Kevin’s statement to him. Which of (i)-(ii) is/are true? (i) The evidence concerning the police station identification should not have been admitted (ii) The evidence concerning the registration number should not have been admitted They are both false

Complaints made by victims ofalleged offences A previous consistent statement made by a personwho claims to be the victim of an offence to which the proceedings relate is admissible under a hearsay exception created by CJA 2003 s.120(1) as evidence of matters stated of which its maker’s oral evidence would be admissible provided that the statement consists of a complaint about conduct which constitutes the offence or part thereof, and the complaint was made as soon as could reasonably be expected, and

Complaints made by victims ofalleged offences (cont) the complaint was not made as result of threat or promiseand the witness gives oral evidence in relation to subject matter before statement adduced, and the witness testifies that, to the best of his belief, he made the statement and it states the truth [Note where these requirements are satisfied, more than one complaint made by a victim may be admissible under this hearsay exception.]

Maureen is raped by Tom. Maureen goes home and, next morning, tells Olive, her flatmate, that she has been raped by Tom. At the trial, Maureen testifies that, to the best of her belief, she made the statement to Olive and it states the truth. The judge permits Maureen to give evidence of her statement to Olive and permits Olive to give evidence of Maureen’s statement to her. Which of (i) to (ii) is/are true? (i) Evidence of the statement to Olive appears to have been properly admitted (ii) If properly admitted, the statement to Olive is admissible as evidence of the matters stated They are both true

Exculpatory statements made by the accused A wholly exculpatory statement made to the police by the accused may be admissible at common law as evidence of accused’s attitude when it was made (i.e. such statements may make the accused’s evidence more credible) but a previous consistent statement which is admissible under this common law exception to the rule against previous consistent statements is not admissible as evidence of the matters stated (i.e. this common law exception to the rule against previous consistent statements is not a hearsay exception)

Jim, being suspected of blackmail, is questioned by the police and totally denies all of the allegations against him. The judge permits the prosecution to adduce evidence of his police statement. At his trial Jim totally denies all of the allegations against him. Which of (i)-(ii) is/are true? (i) The evidence should not be admitted because the statement is a hearsay statement. (ii) The evidence should not be admitted because the statement is a previous consistent statement. They are both false.

Previous consistent statements in civil proceedings Previous consistent statements are admissible in civil proceedings under s.6(2) CEA 1995: to rebut a suggestion of recent fabrication of the witness’ evidence, or with the leave of the court Where admissible in civil proceedings they are admitted as evidence of the matters stated (i.e. under a hearsay exception, s.6(5)). [Note: in civil proceedings a witness statement may be adopted by a witness whilst testifying or treated as his evidence s.6(2) and see CPR 32.5(2).]

Jim, A pedestrian, is injured when he is hit by a car driven by Freda. Jim tells Alf what happened. At the subsequent civil trial of Jim’s negligence claim against Freda, Freda’s counsel suggests, when Jim is cross-examined, that Jim’s evidence is a recent fabrication. Which of [a] or [b] is true? [a] Alf will not be permitted to repeat Jim’s statement because it is a previous consistent statement [b] If Alf is permitted to repeat Jim’s statement the statement will be admissible as evidence of Jim’s credibility but will not be admissible as evidence of the matters stated They are both false

Unfavourable Witnesses This is a witness who is not hostile to the party calling him but whose evidence is unfavourable to that party (e.g where a prosecution witness has forgotten what he told the police) Evidence of the bad character of an unfavourable witness may not be adduced by the party who called him in order to discredit him (Criminal Procedure Act 1865, s.3), though other evidence may be adduced to prove the relevant facts which he has failed to prove [Note: the Criminal Procedure Act 1865 (CPA 1865) applies to criminal and civil proceedings.]

Audrey, aged 75, who has a previous conviction for shoplifting, sees Joan commit criminal damage. By the time of the trial Audrey, who is extremely forgetful, has forgotten what she saw and gives evidence for the prosecution which is confused and is inconsistent with her police statement. It is not suggested that Audrey is being deliberately unhelpful. Which of (i)-(ii) is/are true? (i) The prosecution are entitled to cross-examine Joan concerning her previous conviction (ii) The prosecution may be entitled to adduce evidence of Joan’s police statement under a statutory hearsay exception (ii) is true

Hostile Witnesses This is a witness who does not want to tell the truth on behalf of the party who called him (i.e. who deliberately “forgets” the facts or deliberately gives evidence inconsistent with his out of court statement) In order for a witness to be treated as hostile by the party who called him, the party must obtain the leave of the court The judge, in the exercise of his discretion whether or not to classify witness as hostile, will take into account factors such as the witness’ demeanour and, where this is the case, his refusal to memory refresh

Hostile Witnesses (Continued) • With the leave of the court, the party who called the hostile witness may cross-examine him in relation to his previous inconsistent statements, asking him leading questions, and, where he denies making it, may prove the previous inconsistent statement (written or oral) (s.3 CPA 1865) • Before proving the inconsistent statement “the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement” (CPA 1865, s.3)

Hostile Witnesses (continued) The party who called the hostile witness is not entitled to raise his bad character, bias or previous convictions (CPA 1865, s.3) Even where the witness refuses to testify, the party calling him may still be allowed at common law to cross-examine him on a previous statement

Hostile Witnesses (continued) • In criminal proceedings, where a hostile witness admits making a previous inconsistent statement, or such a statement is proved under CPA 1865 s.3, the statement is admissible as evidence of matters stated of which his oral evidence would be admissible (i.e. under a hearsay exception) (CJA 2003 s.119(1)). • In civil proceedings a previous inconsistent statement, when admissible, is admitted as evidence of the matters stated (i.e. under a hearsay exception) (Civil Evidence Act 1995 s.6(5))

Sheila, who has several previous convictions, sees her ex-husband, Ken, commit a murder and give the police a statement to this effect. At the trial, Sheila, who has now been reconciled with Ken and intends to re-marry him, gives evidence in chief for the prosecution which is inconsistent with her police statement, and refuses to memory refresh. Which of (i)-(ii) is/are true? (i) The prosecution may be permitted to cross-examine Sheila in relation to her police statement, which may be admissible under a statutory hearsay exception (ii) The prosecution may be permitted to cross-examine Sheila in relation to her previous convictions (i) is true.

CROSS-EXAMINATION This is examination of a witness by/on behalf of a party other than the party who called him Thus, a prosecution witness is cross-examined by counsel for the accused and a defence witness is cross-examined by counsel for the prosecution (plus, perhaps, by counsel for a co-accused) Leading questions may be asked May cross-examine to undermine the witness’ evidence, to adduce favourable evidence from the witness or to discredit the witness

CROSS-EXAMINATION (cont) Cross-examination to discredit a witness is improper if it concerns matters that would only have a slight effect on the witness’ credibility or if the importance of the witness’ evidence and the importance of the imputation are greatly out of proportion Inadmissible evidence (e.g. hearsay or inadmissible evidence of bad character) remains inadmissible during cross-examination

CROSS-EXAMINATION (cont) In general counsel may not dispute the truthfulness of a witness’ testimony in relation to a matter if he did not cross-examine the witness in relation to the relevant matter (though this does not apply to proceedings before magistrates, does not require counsel to contradict every detail of the witness’ evidence and does not render evidence to the contrary inadmissible (though if such evidence is adduced it may be necessary to permit the witness to be recalled))

CROSS-EXAMINATION (cont) Note: cross-examination of the accused in relation to his bad character will only be permissible subject to CJA 2003 s.101 (see character PowerPoint) Note: cross-examination of witness’ other than the accused in criminal proceedings in relation to their bad character will only be permissible subject to CJA 2003 s.100 (see character PowerPoint)

Horace sees Alan steal Wilf’s car. Horace is called as a witness for the prosecution at Alan’s trial at Newtown Crown Court. During cross-examination, defence counsel does not suggest that Horace’s view of the car theft was impeded in any way. The defence intend to call Joan to testify that at the time when the car was stolen Horace was inside a bus shelter and could not possibly have witnessed the theft of the car. True/false? The defence should have raised this matterwhen they cross-examined Horace True

Collateral Matters (continued) Essentially, a matter is not collateral if it is so connected to an issue in the proceedings that the cross-examining party would be entitled to call evidence to prove it. The question whether a matter is collateral is one of mixed fact and law for the trial judge who will take into account the necessity, if possible, of not involving the jury in a multiplicity of distracting issues, and must determine whether admitting the evidence in question is in the interests of justice (the judge should achieve fairness and ensure that the jury focus on the real issues and don’t have their attention distracted)

Collateral Matters These are matters which are merely relevant to credibility of the witness who is being cross-examined and which are not relevant to an issue in the proceedings The rule of finality is that where a party cross-examines a witness in relation to a collateral matter, the party cannot adduce evidence in rebuttal of the witness’ answers

Collateral Matters (Continued) • The distinction between collateral matters and those concerning issues may be difficult to draw in the context of a sexual offence count where the complainant’s credibility often forms a central issue (i.e. where at times if the complainant is not credible the prosecution case will be fundamentally flawed)

Collateral Matters (Continued) • E.g. in circumstances in which the complainant alleges sexual assault, the case essentially rests on “her word against his”, the defence allege that the complainant has made other false sexual offence complaints in the past and the complainant denies that she has made any other complaints, evidence in rebuttal appears to be admissible, the matter not being collateral,(but the position appears to be different where the complainant admits making the other complaints but denies that they were false, as admitting evidence in rebuttal in such circumstances could require the jury to embark on a lengthy exploration of irrelevant and peripheral issues)

Dan is charged with raping Collette. Dan’s counsel cross-examines Collette concerning allegedly false rape allegations that Collette previously made against Alf and Ben. Collette admits making allegations against Alf but denies that they were false. Collette denies making allegations against Ben. Which of (i)-(ii) is/are true (i) The judge must admit defence evidence to prove that the rape allegations against Alf were false (ii) The judge must not admit defence evidence to prove that Collette made rape allegations against Ben They are both false

Exceptions to the rule of finality • The rule of finality is subject to the following exceptions, under which evidence in rebuttal of a witness’ answers given during cross-examination on a collateral matter is admissible • where witness denies an allegation of bias or partiality raised during cross-examination, or • where witness (having been lawfully questioned about them) denies his previous convictions (s.6 Criminal Procedure Act 1865 (which also applies to civil proceedings), or

Exceptions to the rule of finality (cont) • where physical or mental problems (e.g bad eyesight or mental illness) may make the witness unable to give reliable evidence or substantially impair his ability so to do

Kay gives evidence for the prosecution at the trial of Victor for assaulting Alan. During cross-examination, Victor’s counsel suggests to Kay that she is biased against Victor because Victor left Sue, his wife, who is Kay’s sister, for another woman. Kay denies that she is biased against Victor and Victor’s counsel wishes to adduce evidence of statements made by Kay to defence witnesses revealing her malice towards Victor. Which of (i)-(ii) is/are true (i) The matter appears to be a collateral matter (ii) The evidence appears to be admissible in rebuttal of Kay’s denial of bias against Victor. They are both true.

Jim is charged with murdering Khalid. Les is called as a prosecution witness and, during cross-examination, with the leave of the court, it is put to him, for the purpose of discrediting his testimony, that he has two previous convictions for perjury, but he denies having any convictions. Which of (i)-(ii) is/are true? (i) The matter is collateral (ii) The defence are entitled to adduce evidence to prove that Les has the perjury convictions They are both true

Arun, who is mentally ill, is a key witness for the prosecution in a murder trial. The defence wish to adduce evidence to prove that the nature of Arun’s mental illness is such that he frequently finds it difficult to differentiate fantasy from reality and is extremely suggestible. Which of (i) - (ii) is/are true? (i) The matter is collateral (ii) The judge must not admit this evidence because a party to criminal proceedings is never entitled to adduce expert evidence to impugn the credibility of a witness (i) is true

EXAMINATION OF WITNESSES IN CRIMINAL PROCEEDINGS