Examination fo Witnesses .docx

*[Subject 3 -- Examination of witnesses -- 3 Q's]* - Examination-in-chief is the examination of a witness by the party calling him or her and its *object is to elicit from the witness evidence supportive of the party's case*. Examination-in-chief must be conducted in accordance with t...

*[Subject 3 -- Examination of witnesses -- 3 Q's]* - Examination-in-chief is the examination of a witness by the party calling him or her and its *object is to elicit from the witness evidence supportive of the party's case*. Examination-in-chief must be conducted in accordance with the exclusionary rules of general application, such as those relating to hearsay, opinion and the character of the accused. *What are leading questions?* - The general rule is that in examination-in-chief a witness may not be asked leading questions, i.e. questions framed in such a way as to suggest the answer sought or to assume the existence of facts yet to be established. - Evidence elicited by such questions is **not inadmissible**, but the weight to be attached to it may be substantially reduced. - 'Leading' is a relative, not an absolute, term and for this reason strict adherence to the rule is not always desirable or possible. - Leading questions may be allowed, in the interests of justice, at the discretion of the judge. E.g -- when a magistrate dies in the course of a case in which a witness has given evidence, the witness, when recalled before a new magistrate, may be asked whether the deposition represents his or her evidence. (permissible leading question). - It is virtually impossible to ask a witness to identify a person or object in court without the use of leading questions, and accordingly leading questions of this kind are also allowed. - Leading questions may be asked on formal and introductory matters, such as a witness's name, address and occupation; and questions which relate to other relevant facts which are not in dispute, or which are merely introductory to questions about facts which are in dispute, are also generally allowed (Robinson (1897) 61 JP 520). - Leading questions may be put to a witness if the party calling him or her has been given leave to treat the witness as hostile *What about refreshing memory?* **(Need to remember this and reference by section number) Under the CJA 2003, s. 139(1),** which has relaxed the common-law rules on refreshing memory, a witness, in the course of giving "oral" evidence, may refer from a document made or verified by him at an earlier time if in order to refresh his or her memory on two conditions: 1. That the witness gives evidence that the document records his or her recollection at the time it was made and 2. that his or her recollection at that time is likely to have been significantly better than at the time of the oral evidence. Section 139(2), designed to avoid the practical difficulties of refreshing the memory in the witness-box from a sound recording, provides for the refreshing of memory from a transcript of a sound recording. - The trial judge has a residual discretion to refuse an application under s. 139 even if the statutory conditions are met. An application to refresh memory will normally be made by an advocate, but it is the proper function of the judge, where the interests of justice demand it, to suggest that a witness, including a prosecution witness, refresh his or her memory from a document. - Section 139(1) and (2) apply to any person giving oral evidence, including the accused. - The witness may refresh his or her memory 'at any stage' in the course of giving oral evidence. *Thus, although a witness refreshing memory in court will normally do so in examination-in-chief, provided the conditions are met there is nothing wrong in principle in allowing a witness to refresh memory during re-examination.* - Concerning the condition in s. 139(1)(b), ultimately it is a matter for the assessment of the judge, whatever the witness's view of the matter s\. 139(1), 'document' means anything in which information of any description is recorded, but not including any recording of sounds or moving images (s. 140). Under s. 139(1), the document must have been prepared by the witness him or herself or by another, provided in the latter case that the witness verified the document. - A witness may refresh memory from the deposition or from a statement to the police taken down by a police officer and then read over by the maker. *Refreshing memory prior to going into the witness box?* - The conditions on which a witness may refresh his or her memory while giving evidence in the witness-box do not apply to a witness who refreshes memory from a statement before going into the witness-box. - All witnesses are routinely provided with copies of their statements before going into court. - There can be no general rule (which, unlike the rule as to what can be done in the witness-box, would be unenforceable) that witnesses may not before trial see the statements which they made at some period reasonably close to the time of the events which are the subject of the trial. - Witnesses are entitled to refresh their memory from their statement or visually recorded interview. - There is no requirement that the witness watch the interview at the same time as the court (para. 18C.4), but if the viewing takes place at a different time, the witness, before being questioned under cross-examination, should normally be asked if and when the recording was watched. Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said. - It is incumbent on prosecuting authorities and judges to ensure that witnesses are informed that they should not discuss cases in which they are involved. - Discussions between witnesses, particularly just before going into court to give evidence, should not take place, nor should statements or proofs of evidence be read to witnesses in each other's presence. - Where such discussions have taken place, each case must be dealt with on its own facts. If it emerges in cross-examination of the witnesses that the discussion may have led to fabrication, the court may take the view that it would be unsafe to leave any of the evidence of the witnesses concerned to the jury, but in other cases it may suffice to direct the jury on the implications which such conduct might have for the reliability of the evidence of the witnesses concerned. What about after going into the witness box? - In some cases it may be appropriate for the witness to withdraw from the witness-box and read the statement in peace. - In the case of a witness who is dyslexic and cannot read an earlier statement, the witness may be given the opportunity of adopting it by having counsel read it out in the absence of the jury. *What about cross-examination on memory refreshing document?* - If a witness has refreshed his or her memory out of court and before entering the witness-box, counsel for the other side is entitled not only to inspect the memory-refreshing document, but also to cross-examine the witness upon the relevant matters contained therein. - If counsel cross-examines upon material in the document from which the witness has refreshed his or her memory, the document is not thereby made evidence in the case; but if counsel cross-examines upon material which has not been referred to by the witness, this entitles the party calling the witness to put the document in evidence so that the tribunal of fact may see the document upon which the cross-examination is based. *What about previous complaints?* - The CJA 2003, s. 120(1), (4) and (7), create an important exception to both the rule against hearsay (see F16) and the rule against previous consistent statements (see F6.39) in the case of a witness's previous complaint. Under the statutory provisions, the witness's complaint, whether oral or written, is admissible subject to a number of conditions, principally: - Witness testifies that to the best of his or her belief he or she made the statement and it is true; that the witness claims that an offence was committed against him or her; that the offence is one to which the proceedings relate; and that the complaint is about conduct which would, if proved, constitute the offence or part of it. - A statement **received under these provisions is admissible as evidence of the matters stated** and also goes to the consistency of the witness. The provisions are much wider than the common-law exception to the rule against previous consistent statements in the case of recent complaints in sexual cases. That exception is likely to be invoked rarely, if at all. *What about previous statement by witness?* "A previous statement" by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if--- a. **any** of the following three conditions is satisfied, and b. while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. \(7) The third condition is that--- a. the witness claims to be a person against whom an offence has been committed, b. the offence is one to which the proceedings relate, c. the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence. d. the complaint was not made as a result of a threat or a promise, and e. *before the statement is adduced* the witness gives oral evidence in connection with its subject matter. For the purposes of subsection (7) the fact that **the complaint was elicited (for example, by a leading question) is irrelevant** unless a threat or a promise was involved. Do not codify the law but are freestanding and provide their own criteria Prosecutors assembling the evidence to be called at trial should have s. 120(4)(b) well in mind if it is intended to rely on a previous statement as evidence of the truth of its contents, especially where a video interview is to stand as the witness's evidence in chief. If the criteria are not met, the complaint may be admissible nonetheless under s. 114. an **'offence ... to which the proceedings relate'** refers to an offence on the indictment and therefore the provisions do not cover a statement made by a person against whom an offence has been committed if that offence is not on the indictment. *What is the general rule against previous consistent (self-serving) statements?* - There is a general common-law rule excluding previous consistent or self-serving statements, sometimes referred to as the rule against narrative, to which there is a range of important statutory and common-law exceptions. "A witness may not be asked about a previous oral or written statement made by the witness and consistent with his or her evidence". Equally, evidence of the previous statement may not be given by any other witness The previous statement, which may also be inadmissible as evidence of the facts contained in it under the rule against hearsay, is excluded as evidence of the accused's consistency. - "D was convicted of the murder of a girl by shooting her. His defence was that the gun went off accidentally when he was trying to make up a quarrel with her. The Court of Criminal Appeal held that evidence that two days after the event D had told his father that his defence would be accident had been properly excluded. Such evidence is easily manufactured and of no evidential value. The fact that D has said the same thing to someone else on a previous occasion did not confirm his evidence." The general rule applies in examination-in-chief, cross-examination and re-examination. Thus, the credibility of a witness may not be bolstered by evidence of a previous consistent statement merely because the witness's testimony has been impeached in cross-examination, and this remains the case 'even if the impeachment takes the form of contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion'. However, the court does have a residual discretion, necessary in the interests of justice, to permit re-examination to show consistency, to ensure that as a result of the cross-examination the jury are not positively misled as to the existence of some fact or the terms of an earlier statement. There are a number of statutory and common-law exceptions to the general rule. including complaints (see F6.32), previous identification and description (see F6.36) and statements in rebuttal of allegations of recent fabrication. *What about self-serving statements made on accusation?* - The Court of Appeal could see no reason for casting doubt on the well-established practice, on the part of the prosecution, to admit in evidence all unwritten, and most written, statements made by an accused person to the police, whether they contain admissions or whether they contain denials of guilt. If such a statement is wholly adverse to the accused, it may be admitted as evidence of the truth of the facts contained in it under the PACE 1984, s. 76. If it is a mixed statement, i.e. a statement containing both inculpatory and exculpatory parts, such as 'I killed X. If I had not done so, X would certainly have killed me there and then', the whole statement is admissible and both parts are admitted as evidence of the truth of the facts they contain. However, if the statement is purely exculpatory or self-serving, it is not admitted as evidence of the facts stated in it; it 'is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts'. The police having found cannabis in D's flat, she told them that it belonged to a man who had brought it there against her will. The Court of Appeal upheld the trial judge's rejection of a submission of no case to answer, on "the ground that D's statement was not evidence of the facts stated but only evidence of her reaction", which was insufficient to negative evidence of possession. If the accused neither gives nor calls evidence, it is the duty of the judge, in the summing-up, to set out the defence case insofar as it is to be found in a mixed statement, which is admissible as evidence of its contents. Similarly, it seems that if the accused gives no evidence the judge, in the summing-up, should remind the jury of an entirely self-serving statement, not for the truth of its contents but because of its relevance as showing the reaction of the accused on accusation. *What is the general rule against impeaching credit of own witnesses?* - The general rule is that a party is not entitled to impeach the credit of its own witness by asking questions or adducing evidence concerning such matters as the witness's bad character, previous convictions, bias or previous inconsistent statements. - However, the general rule appears to have no application where evidence of a witness's bad character is introduced not to impeach the witness's credit in relation to the testimony, but because it supports some other discrete part of the prosecution case. - In the case of a witness who is 'unfavourable', i.e. a witness who displays no hostile animus to the party calling him or her but merely fails to come up to proof or gives evidence unfavourable to that party, the general rule prevails: the only remedy available to the party is to call other witnesses, if available, with a view to proving that which the unfavourable witness failed to establish. Results in two equally credible witnesses directly contradicting each other upon a major fact in issue, it has been said that the party calling them is not entitled to accredit the one and discredit the other; the testimony of both is to be disregarded. (it was held that this dictum does not apply to criminal proceedings, because of the Crown's duty to call all relevant evidence). Equally, the prosecution may call a witness to give evidence only part of which they consider to be worthy of belief and may adduce other evidence to contradict that part of the witness's evidence **which they consider to be inaccurate or false**, and invite the jury to reject that part of the witness's evidence. That may be done without applying to treat the witness as hostile. **However, unless the witness is declared hostile, evidence adduced to contradict the witness may not include a previous inconsistent statement**. In the case of a witness who appears to the judge to be hostile, that is to say not desirous of telling the truth to the court at the instance of the party calling him or her, the general rule is modified only in two respects -- a. under the Criminal Procedure Act 1865, s. 3, that party may, by leave of the judge, prove a previous inconsistent statement of the witness (see F6.52); and b. at common law, the party calling the witness may cross-examine him or her by asking leading questions *When to apply to treat a witness hostile?* - The application to treat a witness as hostile should be made when the witness first shows unmistakable signs of hostility. If counsel for the prosecution has a statement directly contradicting one of their witnesses who gives evidence that he or she is unable to identify the accused, counsel should at once show the statement to the judge and ask for leave to cross-examine the witness. Unless the hostility is excessive; if the witness gives evidence contrary to an earlier statement (or fails to give the evidence expected) the party calling the witness and the trial judge should first consider inviting the witness to refresh his or her memory from material which it is legitimate to use for that purpose and should not immediately proceed to treat the witness as hostile. The prosecution, during re-examination, had been properly allowed to treat as hostile a witness who had shown no signs of hostility during examination-in-chief. Although such an application is a little unusual, it is a matter for the judge's discretion. The discretion of the judge, however hostile the witness, is absolute the decision will rarely be open to a successful challenge on appeal. Although the question whether a witness is hostile is for the judge in the absence of the jury following a formal application, the evidence and demeanour of the potentially hostile witness should usually be tested in the presence of the jury. *The s3 rules -- One of the exceptions to the general rule above --* A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given 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 statement. First rule -- The first is an enactment of the common-law rule that a party calling a witness is not entitled to impeach the witness's credit by evidence of bad character, i.e. evidence of previous misconduct, convictions, or other evidence designed to show that the witness is not to be believed on oath. The second and third rules apply to witnesses who, in the opinion of the judge, prove 'adverse', which means 'hostile' and not merely 'unfavourable'. In assessing whether a witness is hostile for the purposes of s. 3, a judge will consider many factors, including whether the witness is in a position to assist, whether the witness has indicated a willingness to assist, any previous accounts given, and demeanour in the witness-box. - does not depend solely on whether the witness has been previously inconsistent in a written statement or in evidence on oath. The second rule in s. 3 is that a party may 'contradict' a hostile witness, i.e. call other witnesses to prove that which the hostile witness has failed to establish. (same effect in the case of unfavourable witnesses). The third rule in s. 3, which does apply only in the case of a witness who is, in the opinion of the judge, hostile, allows the judge to give leave to prove that the witness has made at other times a statement inconsistent with the present testimony. A witness for the defence who is treated as hostile is in the same position as a hostile prosecution witness, and accordingly is open to cross-examination on a previous inconsistent statement. Doesn't matter whether the previous inconsistent statement was oral or written. Cross-examination on the contents of an Achieving Best Evidence interview may be permitted. If the witness, when asked, admits making the previous statement, this will clearly suffice as proof that the witness did make it. If the witness does not make such an admission, whether the earlier statement can be used depends on the facts of the particular case. Where the witness accepted that he had made some parts of a written statement and accepted that the signatures on the statement were his, it was held that this was evidence entitling the judge to conclude that the witness had made the statement, and therefore to rule that cross-examination on it was permissible. A judge has a discretion to allow a witness to be cross-examined about a previous inconsistent statement under s. 3 if the witness professes to have no recollection or departs from the proof in favour of the other side or states on oath that he or she is reluctant to give evidence, i.e. indicates by implication that he or she has evidence to give but declines to do so. There is **no such discretion**, however, where a witness refuses to speak at all or says that he or she made a statement to the police, without saying that it was untrue, and then indicates an unwillingness to answer any further questions. If the nature of the evidence given justifies it, an application may be made to treat as hostile the spouse or civil partner of an accused who is competent but not compellable for the prosecution, and who has waived his or her right to refuse to testify. it is desirable that the judge should explain to the spouse or civil partner, in the absence of the jury and before the oath is taken, that if the choice is made to give evidence, he or she may be treated like any other witness. Even if the spouse or civil partner elects not to give evidence, his or her written statement may be admissible under the CJA 2003, s. 114(1) *What are statements in rebuttal of allegations of recent fabrication?* - Under the CJA 2003, s. 120(1) and (2), which constitute an exception to both the rule against hearsay (see F16) and the rule against previous consistent statements (see F6.39), **a statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support the witness's credibility.** S120 does not itself govern admissibility However, if in cross-examination it is suggested to a witness that his or her evidence is a recent fabrication, evidence of a previous consistent statement will be admissible in re-examination to negative the suggestion and confirm the witness's credibility (Y \[1995\] Crim LR 155). The principle has no application where a witness is cross-examined on the basis that the account was fabricated from the outset, unless the effect of the cross-examination is in fact to create the impression that the witness invented the story at a later stage. In a trial in which the previous statement amounts to a complaint, it may be admissible to rebut the allegation of recent fabrication notwithstanding that it is inadmissible as a recent complaint. Thus s. 120(2) can apply where the defence case is that the complainant has fabricated oral evidence and the evidence in rebuttal is given by a person to whom a complaint was made, but the complainant has not given oral evidence of having made that complaint. Although s. 120(2) refers to 'fabrication' without the qualification 'recent', the clear intention was to leave the common-law principle intact. However, the principle is not to be confined to a temporal straitjacket. 'Recent' is an elastic description designed to assist in the identification of circumstances in which a previous consistent statement should be admitted where there is a rational basis for its use as a tool for deciding where the truth lies. The touchstone is whether the evidence may fairly assist in that way, and not the length of time. Where it was alleged by a father that his son had been coached by his mother to give false evidence against him to stop him from seeing his children and by reason of the financial dispute between him and his wife, evidence of the son's complaints to the mother against the father prior to the breakdown of the marriage was admissible in rebuttal, but not evidence of such complaints made at a time when the father was not permitted to see his children and when he and his wife were in financial dispute. *What about previous inconsistent statements?* If a witness in examination-in-chief (or cross-examination) admits making a previous oral or written inconsistent statement, the statement is admissible under the CJA 2003, s. 119, as evidence of any matter stated of which oral evidence by the witness would be admissible. The statement is admissible for the truth of its contents as evidence against its maker. Thus if it implicates a co-accused, s. 119 does not allow it to be used against the co-accused. The fact that a witness who has made a previous statement gives evidence that he or she cannot remember the matters in the statement will not necessarily make the statement a previous inconsistent statement. Such a conclusion obviously cannot be drawn where the witness stands by what was said previously, even though the witness cannot remember the matters stated. Such a conclusion should be drawn if the "witness denies the truth of the earlier statement", in which case, in effect, 'he admits making a previous inconsistent statement', "or is treated as a hostile witness on the basis that in all the circumstances of the case the witness is likely to be able to remember the matters in question and by claiming not to be able to do so is not willing to tell the truth to the court". *What is the nature of cross examination?* Cross-examination is the questioning of a witness by (a) the opponent of the party calling the witness or (b) any other party to the proceedings. Thus, as to the latter, an accused has the right to cross-examine a co-accused who has chosen to give evidence (and any witnesses called by the co-accused). - This applies not only where the co-accused has given evidence unfavourable to the accused, but also if the co-accused has merely given evidence in his or her own defence. Usually cross-examination follows immediately after examination-in-chief, but witnesses are sometimes merely tendered by the prosecution for cross-examination. Such a witness is called by the prosecution, sworn, asked no questions in chief other than name and address, and then cross-examined by the defence. For magistrates' court proceedings, 'every other party may ask questions in cross examination'. Crown Court where both prosecution and defence witnesses may be cross-examined by any co-accused in the order their names appear in the indictment or as directed by the court, **a defence witness** may be cross-examined by the prosecution after cross-examination by any co-accused (r. 25.11(c)). *What is cross examination by an accused in person?* As a general rule, an accused is entitled to cross-examine in person any witness called by the prosecution. T - he general rule is subject to a common-law restriction and important statutory exceptions. Concerning the former, a trial judge is not obliged to give an unrepresented accused freedom to ask whatever questions, at whatever length, the accused wishes. As to the latter, the YJCEA 1999, ss. 34 to 39, protect three categories of witness from cross-examination by an accused in person. Under the YJCEA 1999, s. 34, no person charged with a sexual offence may cross-examine in person the complainant, either in connection with the offence or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings; No person charged with one of a number of specified offences may cross-examine in person a 'protected witness' either in connection with the offence, or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings; and Under s. 36, the court has a general power, in cases not covered by ss. 34 and 35, to give a direction prohibiting the accused from cross-examining a witness in person if: a. the quality of evidence given by the witness is likely to be diminished by such cross-examination and would be likely to be improved by such a direction; and b. it would not be contrary to the interests of justice. In deciding whether (a) applies in the case of a witness, the court must have regard to the particular matters set out in s. 36(3), including the nature of the questions likely to be asked. - Accused will not be denied the opportunity to make representations in relations to matters set out in s36(3). Section 38 provides that, where an accused is prevented from cross-examining a witness in person, the court must invite the accused to appoint a legal representative; and that if the accused fails to do so and the court decides that it is in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused, the court must choose and appoint such a representative, who shall not be responsible to the accused. - Court-appointed advocate does not have a free-ranging remit to conduct the trial on the accused's behalf. The advocate's duty is to cross-examine a particular witness and to ensure that he or she is in a position properly to do so and therefore the duty may include applications to admit bad character evidence of the witness and applications for disclosure of material relevant to the cross-examination. Technically, the role ends at the conclusion of the cross-examination, but if the advocate is prepared to stay and assist the accused on a pro bono basis, the court should not oblige the advocate to leave. Under s. 39, where an accused is prevented from cross-examining a witness in person, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced by any inference that might be drawn from the fact that such cross-examination has been prevented or by the fact that the cross-examination was carried out by a court-appointed representative. *What are the objects of the cross examination?* a. to elicit from the witness evidence supporting the cross-examining party's version of the facts in issue; b. to weaken or cast doubt upon the accuracy of the evidence given by the witness in chief; and c. in appropriate circumstances, to impeach the witness's credibility. *What is the role of the judge during a cross examination?* The court may ask a witness questions and, in particular, where the accused is not represented, ask a witness any question necessary in the interests of the accused The questions that may be put are in the discretion of the court, subject to the rules of evidence and r. 1.3 In general, when cross-examination is conducted by a competent advocate, a judge should not intervene, save to clarify matters the judge does not understand or thinks the jury may not understand. If the judge wishes to ask questions about matters that have not been touched upon, it is generally better to wait until the end of the examination or cross-examination. A judge should not be criticised for occasional transgressions, but there may come a time, depending on the nature and frequency of the interruptions, that the Court of Appeal is of the opinion that defence counsel was so hampered in the proper conduct of the cross-examination that the judge's conduct amounts to a material irregularity 'The principle of fairness': 1. It is a fundamental tenet of the administration of law that all those who appear before the courts are treated fairly and that judges act---and are seen to act---fairly and impartially throughout the trial. 2. It is a duty of a judge to intervene in the course of witness evidence 'to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if this is unclear' (per Rose LJ in Tuegel \[2000\] 2 Cr App R 361). 3. It is wrong for a judge 'to descend into the arena and give the impression of acting as advocate' (per Lord Parker CJ in Hamilton (9 June 1969 unreported), cited in Hulusi (1973) 58 Cr App R 378 at p. 382). However, concerning the third principle, whether a judge has 'descended into the arena' should be assessed not by whether it gives rise to an appearance of bias in the eyes of a fair-minded observer, but by whether it renders the trial unfair. Scale and content of judicial interventions led to a quashing of conviction, even where the summing up was proper and ample evidence to convict. *What is putting one's case and the effect of failure to do so?* - A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict the witness or impeach his or her credit by calling other witnesses, tacitly accepts the truth of the witness's evidence in chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve the witness in that regard. The proper course is to challenge the witness while in the witness-box or, at any rate, to make it plain at that stage that the evidence is not accepted. Counsel for D was not permitted to suggest to the jury in his closing speech that the co-accused and a prosecution witness had committed the offence charged, where the allegation had not been put to either in cross-examination. Evidence to contradict a witness which was not put to him or her in cross-examination may be admitted, provided that the witness is then recalled and cross-examination reopened in order to put the new evidence to the witness. When a witness is young or otherwise vulnerable, the court may impose restrictions on an advocate 'putting his case' when there is a risk of the witness failing to understand, becoming distressed or acquiescing to leading questions. *What are the general restrictions on cross examinations?* - Should be conducted with restraint and a measure of courtesy and consideration which a witness is entitled to expect in a court of law. - Thus, it is no part of the duty of an advocate for the defence to embark on lengthy cross-examination on matters which are not really in issue. - Questions should not be in the nature of comment on the facts; comments should be confined to speeches.  - Nor should questions be framed in such a way as to invite argument rather than elicit evidence on the facts in issue. - Should avoid questions such as 'I suggest to you that...' and 'Do you ask the jury to believe that...'. Cross-examination should be confined to putting questions of fact. An advocate should not state what somebody else has said or is expected to say. - The time for statements such as 'The defendant's recollection is...' or 'The defendant will say...' is the opening speech; such statements should not be made, or put in the form of a question, in cross-examination. - The same restrictions apply to questions put by the judge. - Where you are acting as an advocate, your duty not to abuse your role includes the following obligations... you must not make statements or ask questions merely to insult, humiliate or annoy a witness...' - The judge has a general discretion to prevent any questions in cross-examination which the judge considers to be unnecessary, improper or oppressive. - Enabling witnesses to give their best evidence, and the pre-trial and trial process should, so far as is necessary, be adapted to meet such ends. Questions in cross-examination are not restricted to matters raised in chief, but may relate to any fact in issue (or relevant fact), or to the credibility of the witness. - A witness under cross-examination may be asked leading questions. This is so even if the witness appears to be more favourable to the cross-examining party than to the party calling him or her. - The exclusionary rules of evidence relating to hearsay, opinion, privilege etc. apply to cross-examination as they apply to examination-in-chief. - It has been said that the principle established in this case, that an accused cannot be cross-examined by the prosecution in such a way as to reveal that the accused made an inadmissible confession, also obtains in favour of any co-accused. *Can a judge impose time limits on the cross examination?* - The court has a general duty to deal with cases efficiently and expeditiously and to manage cases actively to ensure that evidence is presented in the shortest and clearest way, giving any direction appropriate. - As part of its case management powers, the court may limit the duration of any stage of the hearing and the cross-examination of a witness. - Although the imposition of time-limits for cross-examination (or examination-in-chief) of witnesses should not become a routine feature of trial management, judges are fully entitled, and indeed obliged, to impose reasonable time-limits where counsel indulge in prolix and repetitious questioning. - It is not the duty of counsel to put to a witness every point of an accused's case, however peripheral, or to embark on lengthy cross-examination on matters which are not really in issue. The duty is to discriminate between important and relevant features of a defence case which must be put to a witness and minor and/or unnecessary matters which do not need to be put. - Entitlement to a fair trial is not inconsistent with proper judicial control over the use of court time and the Court of Appeal will not interfere with a decision made by a judge in this respect unless it is plain that it resulted in unfairness. *What is cross examination as to credit?* - 'Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence'. - Thus a witness may be cross-examined about his or her means of knowledge of the facts to which he or she has testified, opportunities for observation, powers of perception, the quality of the witness's memory, mistakes, omissions and inconsistencies in evidence, and omissions or inconsistencies in previous statements that relate to the witness's likely standing with the jury after cross-examination but which are not 'relative to the subject matter of the indictment' As to quality of memory, there is a risk of 'contamination' or collusion when officers have conferred in the production of statements about events or interviews. As to omissions, where an accused is charged with a sexual offence and asserts fabrication on the part of the complainant, the accused may be cross-examined as to what facts are known to the accused that might explain why the complainant would make a false accusation. In a sexual case, the defence may seek to undermine the credibility of the complainant by cross-examination on her delay in making her complaint, in which case the judge should direct the jury that, whereas some may complain immediately to the first person seen, others may feel shame and shock and not complain for some time, and that a late complaint is not necessarily a false one. A witness may also be cross-examined about previous convictions or bias (if, in either case, it is lawful to do so under the rules relating to evidence of bad character in the CJA 2003, Part 11; see F7.22, F13 and F15), any mental or physical disability affecting reliability, and any previous statements made by the witness 'relative to the subject-matter of the indictment' and inconsistent with the witness's testimony; and if the witness denies any of these matters, the cross-examining party is entitled to prove them. *What is cross examination on bad character?* Section 99 of the Act abolishes the common-law rules governing the admissibility of evidence of 'bad character' in criminal proceedings and the intention appears to be to abolish not only the rules as to the introduction of such evidence in examination-in-chief, but also the rules governing cross-examination about bad character. - Thus such cross-examination is permitted only if it comes within one of the specified categories of admissibility set out in s. 100 (non-defendant's bad character; see F15) or 101 (defendant's bad character; see F13). Evidence of bad character for the purposes of the Act is defined by s. 98 as evidence of, or of a disposition towards, misconduct, other than evidence which 'has to do with the alleged facts of the offence with which the defendant is charged' or 'evidence of misconduct in connection with the investigation or prosecution of that offence'. In the case of sexual offences, except with the leave of the court, no question may be asked in cross-examination about any sexual behaviour of the complainant. *What are the rules of finality of answers to questions on collateral matters?* The general rule, based on the desirability of avoiding a multiplicity of essentially irrelevant issues, is that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, i.e. matters which go merely to credit but which are otherwise irrelevant to the issues in the case. - 'The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence --- if it have such a connection with the issues that you would be allowed to give it in evidence --- then it is a matter on which you may contradict him.' E.g -- A prosecution witness, having sworn that the cistern had been used, was asked in cross-examination whether he had not said to one Cook that the Excise officers had offered him £20 to give evidence that the cistern had been used. Upon denial of this allegation, it was held that the defendant was not allowed to call Cook to contradict the witness, because proof that a bribe was offered to the witness and not accepted was irrelevant to the matter in issue. It was held that D should have been allowed to call a witness to give evidence that she had been approached by the private investigator and when she had refused to give adverse information had been told that S had unlimited funds for the right information. When viewed in isolation, the witness's evidence was collateral, but although 'borderline', it was relevant as showing that the victims might have been offered money or been influenced by the offer of money. The trial judge ruled that the defence could not call W to give evidence that he had been threatened by the officers, because this would go solely to their credit. Allowing the appeal against conviction, the Court of Appeal held that the trial judge had erred: the evidence was relevant to an issue which had to be tried, because, if true, it showed that the police were prepared to go to improper lengths in order to secure a conviction, which would have supported the defence case that the statements attributed to D had been fabricated. *What is bias and partiality?* Evidence has always been admissible to contradict a witness's denial of bias or partiality towards one of the parties, and to show that the witness is prejudicial concerning the case being tried. Much evidence of bias is likely to remain admissible under the doctrine, because it will fall outside the statutory definition of evidence of bad character in s. 98 of the 2003 Act, which excludes 'evidence of, or of a disposition towards misconduct... which has to do with the alleged facts of the offence with which the defendant is charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence'. It is nonetheless likely to be admitted under the CJA, s. 100(1)(b), i.e. as evidence of the bad character of a person other than the accused that has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole (see F15). Although evidence is not admissible to contradict a witness's denial of being offered a bribe to give false evidence, because this does not show that he or she is not a fair and credible witness, evidence is admissible to rebut a witness's denial of accepting such a bribe, because that tends to show the witness's partiality. - 'A witness may be asked how he stands affected towards one of the parties; and if his relation towards them is such as to prejudice his mind, and fill him with sentiments of revenge and other feelings of a similar kind, and if he denies the fact, evidence may be given to show the state of his mind and feelings.' D may call evidence to contradict a prosecution witness who, in cross-examination, denies having threatened to be revenged on D following a quarrel with him. The principal prosecution witnesses, D's two daughters, were cross-examined on the basis that a. they had been 'schooled' by their mother into giving false evidence, and b. they had made admissions that evidence given by them in previous criminal proceedings against their father was false. Both allegations were denied. The trial judge refused to allow the defence to call the woman to whom the admissions were alleged to have been made. Quashing the conviction, the Court of Criminal Appeal held that this evidence should have been admitted because the bias that it would have revealed went to the very foundation of D's defence. While a police officer was giving evidence, a man in the public gallery was seen taking notes. He was later seen discussing the case with D's husband, apparently describing the officer's evidence to him. The husband, under cross-examination, denied this incident. The Court of Appeal held that the trial judge had properly allowed the prosecution to call evidence in rebuttal: the husband was prepared to lend himself to a scheme, designed to defeat the purpose of keeping prospective witnesses out of court, to enable him the more convincingly to describe how he, and not his wife, had caused the injuries alleged. *What is Re Examination?* - After cross-examination, a witness may be re-examined by the party who called him or her. This applies even in the case of a hostile witness, who may be re-examined on any new matters which arose out of cross-examination. Leading questions may not be asked in re-examination. The principal rule of re-examination is that, except with the leave of the judge, questions should be confined to matters, including any new matters, arising out of cross-examination. This rule applies not only in the case of a witness who has been examined in chief, but also in the case of a witness whose name is notionally on the back of the indictment and who was called by the prosecution merely to allow the defence to cross-examine him. Where a witness under cross-examination gives evidence of part of a conversation on some previous occasion, questions may not be asked in re-examination about everything else that was said at the same time, but only about so much as can be in some way connected with the statement as to which the witness was cross-examined, such as other statements which qualify or explain it in any way. Can refresh memory for re-examination. *What are the range of special measures available?* - Wide range of special measures has not altered the court's responsibility for the fairness of the trial; trial judges are expected to deal with specific communication problems faced by any defendant or witness as part of their ordinary control of the judicial process. - The statutory regime is comprehensive in its application to non-defendant witnesses, it does not oust this residual inherent jurisdiction to make ad hoc modifications to the orthodox procedures for a particular non-eligible witness in the interests of justice. - That residual inherent jurisdiction is limited, and does not extend to permitting a witness to testify by live link or by video-recorded interview in circumstances not covered by the YJCEA 1999 Where a defendant was too ill in Dubai to be able to attend his own trial in the UK, and the trial court held that it had no residual jurisdiction to allow him to testify by video link. Defendants' access to the live link for their own testimony or for the entire trial is now governed by the same statutory provisions as for other witnesses, under the revamped, open-textured CJA 2003, s. 51. No defence application (nor indeed the defendant's assent) is required, nor are any exigent circumstances making it impossible, or inadvisable, for the defendant to attend. The litmus test of the special measures regime appears in s. 19(2), requiring the court to consider which measures will 'maximise the quality of the evidence'. In certain circumstances this presumption can be displaced. In all other cases, s. 19(2) requires that the measures be tailored to the needs of the individual witness and defendant, now encourage flexibility in devising a combination of appropriate special measures. What are the range of special measures available? This package of measures is available in both the Crown Court and the magistrates' courts, including the youth court. The range of statutory special measures currently available is: a. screening the witness from the accused (YJCEA 1999, s. 23); b. giving evidence by live link, accompanied by a supporter (s. 24) (for other uses of live link, see D15.96); c. giving evidence in private, available where sex offences or modern slavery, servitude, forced labour or human trafficking are charged (MSA 2015, s. 46(3)) or where there is a concern that the witness may be intimidated (YJCEA 1999, s. 25); d. ordering the removal of wigs and gowns while the witness gives evidence (s. 26); e. video recording of evidence-in-chief (s. 27); f. video recording of cross-examination and re-examination where the evidence-in-chief of the witness has already been video-recorded (s. 28) (see D14.52); g. examination through an intermediary for a young or incapacitated witness (s. 29); h. provision of aids to communication for a young or incapacitated witness (s. 30); and i. a witness anonymity order (CAJA 2009, Part 3, ch. 2), which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure (part 3, chapter 1: see D1.219). Practitioners should also bear in mind other protective procedures, such as: 1. orders under the YJCEA 1999, s. 46, for restrictions on reporting and public access to protect a fearful or distressed adult witness's identity, where such an order is likely to improve the quality of that witness's testimony or cooperation (see D3.139 and CrimPD I, para. 5B.33; see Supplement, CPD.5B); 2. complainant anonymity in sex offence cases (Sexual Offences (Amendment) Act 1992, s. 1(1): see D3.138); 3. the prohibition in the YJCEA 1999, ss. 34 to 38, on cross-examination by the accused in person of (i) child complainants of or witnesses to sexual offences, offences of violence, cruelty, kidnapping, false imprisonment or abduction, and (ii) adult complainants in sexual offence cases (see F7.3 and CrimPD V, para. 23A); and 4. the use of pre-trial depositions of children or young persons under the CYPA 1933, s. 43 (see D16.38). Detailed suggestions for flexibly and creatively adapting special measures to accommodate the individual witness's particular needs and preferences. *What are the eligibility criteria for these special measures?* - The measures apply with equal force to both prosecution and defence witnesses. - Different provisions apply in the case of an accused They are -- - all witnesses under the age of 18 at the time of the hearing or video recording; - vulnerable witnesses affected by a mental or physical impairment; - witnesses in fear or distress about testifying; - adult complainants of sexual offences, or of offences under the MSA 2015, ss. 1 (slavery, servitude and forced or compulsory labour) and 2 (human trafficking), or of any other offence where it is alleged that the behaviour of the accused amounted to domestic abuse within the meaning of the Domestic Abuse Act 2021, s. 1; and - any witness in a case involving a 'relevant offence', currently defined to include homicide offences and other offences involving a firearm or knife. For witnesses who are not automatically eligible (i.e. those affected by mental or physical impairment or in fear or distress about testifying), the court must determine whether the quality of the evidence would be diminished by the witness's condition taking into account any views of the witness before making a declaration of eligibility. Adult complainants of sexual offences (s. 17(4A)) and witnesses in 'relevant offence' cases have an unqualified right to opt out of special measures. After the declaration of eligibility is made, the court must consider which special measures will maximise the quality of the witness's evidence; for all child witnesses, this is presumed to be the consequence of the 'primary rule' measures. Testifying through an intermediary and aids to communication are not available for witnesses eligible only by reason of fear or intimidation. *What is the eligibility of defendant for live link?* - The consequence is that the defendant's access to the live link in the Crown Court and magistrates' court is now governed by the general provisions applicable to all witnesses and other participants in the trial. - The court must consider all the circumstances of the case, and be satisfied that it is in the interests of justice that that person take part in the proceedings in accordance with an audio link or video link, and that the parties, and if relevant the youth offending team, have been given an opportunity to make representations. - The same criteria apply to any application to rescind a live link direction - No party may apply to vary or rescind a live link direction order unless there has been a material change of circumstances since it was given. The prescribed 'circumstances' are framed in terms of 'person' rather than 'witness' and **so could apply to the defendant when not giving evidence**, as well as to jurors and legal representatives and observers (s. 51(6): a. the person's availability; b. any need for the person to attend in person; c. the person's views; d. the suitability of the proposed live link facilities; e. whether that person would be able to take part in the proceedings effectively in accordance with the direction; f. for a witness (i) the importance of that witness's evidence to the proceedings, and (ii) whether a direction might tend to inhibit any party from effectively testing that witness's evidence; and g. the arrangements that would or could be put in place for members of the public to see or hear the proceedings conducted in accordance with the live link direction. The Crown Court and magistrates' courts continue to deploy inherent powers to direct that the defendant be assisted by an intermediary -- The court 'must' exercise its power to appoint an intermediary where two criteria are met: a. the defendant's ability to participate is likely to be diminished by reason of age, if under 18; or if 18 or over, by a mental disorder (as defined in s. 1(2) of the Mental Health Act 1983), or a physical disability or disorder; and b. the appointment is 'necessary' for the purpose of facilitating effective participation. The court may act on its own initiative to appoint an intermediary, The court may not vary or discharge an intermediary order unless satisfied that since the order was made the defendant's communication needs or other material circumstances have changed materially, and the defendant would be still able to participate effectively without the order. Practitioners should be vigilant to identify defendants with comprehension difficulties which could warrant an application for an intermediary. The assessment may conclude that there is no need for an intermediary's assistance at trial, instead recommending ground rules for conduct of the trial. - Those ground rules should take account of how all evidence is led throughout the trial to enable the defendant to understand and participate in the proceedings; a second ground rules hearing may be needed after the intermediary meets the defendant in person, especially if previous communication on which the assessment was based was remote Magistrates had acted irrationally in denying an intermediary to a defendant with ADHD, notwithstanding that he was not wholly incapable of communicating his testimony, underlining the entitlement of a defendant with communication difficulties, like any other witness, to give best evidence. *What are intermediaries?* - A person who is either approved by the court under the YJCEA 1999, or is asked to assess a defendant's communication needs, or appointed by the court to facilitate a defendant's effective participation in the trial, when the defendant gives evidence or at any other time, where otherwise that defendant's communication needs would impede such participation. Intermediaries are independent of the parties and owe their duty to the court They must assist the court to achieve the overriding objective set out in the CrimPR, including assessing continually the witness's or defendant's ability to participate, and intervening if necessary Their role when appointed to assist a defendant's effective participation includes explaining to the defendant, in understandable terms, what is said and done by other participants Contrary to occasional practice, an intermediary should not be sworn as a witness at a GRH Intermediaries should not be asked to provide expert opinion or testimony or an opinion regarding the reliability of a witness, or as to the defendant's fitness to plead, as their role is to assist communication of evidence. But approving the provision to the jury of an intermediary's assessment report, to give them the full picture. An intermediary can be used at trial even if the ABE interview was conducted without one. The Court of Appeal has approved the use of intermediaries for profoundly disabled witnesses incapable of speech For less disabled witnesses, experience has shown that one of the most useful functions of intermediaries is to assist the trial judge and counsel in establishing what types of questions are likely to cause misunderstanding, and thus avert them. an intermediary can assist a witness to communicate by explaining questions and answers, this happens very rarely in practice; advocates usually put their questions directly to the witness, with the intermediary intervening only where miscommunication is likely to have occurred. Particular care is required to ensure that intermediaries assisting defendants do not jeopardise their impartiality through their close contact with them, and that transparency as to their involvement is observed at all times. Same for intermediaries assisting complainants.