Examination of Witnesses - Revision history

IBJadmin at 10:41, 3 August 2012

2012-08-03T10:41:37Z

← Older revision		Revision as of 12:41, 3 August 2012
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	A witness must testify from her current recollection at the time of testifying facts previously observed. Direct examination is supposed to be like a conversation with the accused, but when you cannot get the witness to attest to vital information, and he does not realize that he is not giving you the information you want, then there are certain situations where counsel is allowed to remind them.		A witness must testify from her current recollection at the time of testifying facts previously observed. Direct examination is supposed to be like a conversation with the accused, but when you cannot get the witness to attest to vital information, and he does not realize that he is not giving you the information you want, then there are certain situations where counsel is allowed to remind them.
	*There are two views on this top:		*There are two views on this top:
	** '''Total memory loss''' : witness is pushed to the point where they have said everything they can possibly remember.		** '''Total memory loss''': witness is pushed to the point where they have said everything they can possibly remember.
	***'''Devoid of memory''' is the usual standard.		***'''Devoid of memory''' is the usual standard.
	**'''Possessed of imperfect present recollection''': a more liberal interpretation where any witness can ask to refer to notes in order to ensure complete accuracy.		**'''Possessed of imperfect present recollection''': a more liberal interpretation where any witness can ask to refer to notes in order to ensure complete accuracy.
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	'''Refreshing Memory Out of Court'''		'''Refreshing Memory Out of Court'''
	Prior to testifying, a witness may refer to a document with information about the facts to improve his or her recollection. The opposing counsel has to ask if this occured during cross-examination. If it has occured, opposing counsel may apply to the judge to see the document used by witness and to cross-examine him on statements contained in the document. The decision is up to the judge and appellate courts are unlikely to interfere with this.		Prior to testifying, a witness may refer to a document with information about the facts to improve his or her recollection. The opposing counsel has to ask if this occured during cross-examination. If it has occured, opposing counsel may apply to the judge to see the document used by witness and to cross-examine him on statements contained in the document. The decision is up to the judge and appellate courts are unlikely to interfere with this.
			*An important factor is whether the witness referred to the document just before going into court.
	An important factor is whether the witness referred to the document just before going into court. Another factor is whether it is readily available so there is no delay.		*Another factor is whether it is readily available so there is no delay.

	'''Refreshing Memory In Court'''		'''Refreshing Memory In Court'''
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	'''Past recollection recorded'''		'''Past recollection recorded'''
			*A refreshing document that the witness made or verified substantially and contemporaneously with the facts to be used if the witness cannot recall the facts.
			*After reading the document, it should be submitted to evidence.

	=Cross-Examination=		=Cross-Examination=

IBJadmin at 10:38, 3 August 2012

2012-08-03T10:38:52Z

Show changes

IBJadmin: /* Rebuttal Evidence */

2012-07-09T12:44:23Z

Rebuttal Evidence

← Older revision		Revision as of 14:44, 9 July 2012
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	=Rebuttal Evidence=		=Rebuttal Evidence=
			Rebuttal evidence is also known as evidence in reply. This is a chance for the prosecution to redress issues that are a surprise, as long as they are not collateral issues.

IBJadmin: /* Re-Examination */

2012-07-09T12:43:28Z

Re-Examination

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	=Re-Examination=		=Re-Examination=
			The purpose of re-examination is limited. It cannot split your case, it can only clarify matters brought out for the first-time in cross-examination only. After the cross-examination, the party calling the witness may re-examine him. Thus, it is only after cross-examination and must be confined to matters discussed on the cross-examination.

			The counsel can also re-examine on statements volunteered by witness on cross-examination unless the cross-examiners move to have those answers disregarded. Leading questions are not allowed unless the judge permits the witness to bring out new matters during the re-examination and, then, the opponent is entitled to ask them on re-cross-examination.

	=Rebuttal Evidence=		=Rebuttal Evidence=

IBJadmin: /* Model of Questioning */

2012-07-09T12:36:59Z

Model of Questioning

← Older revision		Revision as of 14:36, 9 July 2012
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	===Model of Questioning===		===Model of Questioning===
			Leading questions are allowed on cross-examination, but the judge has discretion to disallow leading questions on cross-examination when the witness appears eager to please the cross-examiner. Favourable witness's answers to leading questions on cross-examination are entitles to no weight.

			Leading questions are permitted during cross-examination, but misleading questions are not allowed.

			There are three forms of cross-examination (they can be used together):
			*Ask about facts that are material and relevant.
			*Try to weaken examination on testimony given in direct examination (suggest that it is exaggerated or incomplete).
			*Impeach the witness's credibility (untruthful, inaccurate, dishonest ; being involved in discredited acts).

	=Re-Examination=		=Re-Examination=

	=Rebuttal Evidence=		=Rebuttal Evidence=

IBJadmin: /* Scope of Cross-Examination */

2012-07-09T12:32:08Z

Scope of Cross-Examination

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	The rules of admissiblity apply to cross-examination.		The rules of admissiblity apply to cross-examination.

	e.g. If an expert's out of court statement is inadmissible as hearsay, contents of statement cannot be put into evidence by device of cross-examining another expert witness.		e.g. If an expert's out of court statement is inadmissible as hearsay, contents of statement cannot be put into evidence by device of cross-examining another expert witness.

	e.g. Statement made out os court by the accused is inadmissislbe as hearsay to incriminate a co-accused and can't be put to co-assued on cross-examination.		e.g. Statement made out os court by the accused is inadmissislbe as hearsay to incriminate a co-accused and can't be put to co-assued on cross-examination.

	The Crown may introduce a statement made by the accused only after proving that it was made voluntarily and cannot cross-examine unless it is the same. But a co-accused can cross-examined on the accused's statement without proving voluntariness.		The Crown may introduce a statement made by the accused only after proving that it was made voluntarily and cannot cross-examine unless it is the same. But a co-accused can cross-examined on the accused's statement without proving voluntariness.

IBJadmin: /* Scope of Cross-Examination */

2012-07-09T12:31:36Z

Scope of Cross-Examination

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	===Scope of Cross-Examination===		===Scope of Cross-Examination===
			The scope is not confined to examination in chief. Even though witness gives favourable evidence to the examiner in chief, opposing counsel has a chance to solicit favourbale answers or disprove the answers given in direct examination. Credibility is a central issue in cross examination.
			Objects of cross-examination are to adduce testimony favourable to cross-examiner's case, to undercut damaging testimony on examination in chief and to impeach the witness's credibility.

			At CL, the scope not limited to matters raised on examination in chief. But it must be relevant, so it must relate to a material fact, a relevant fact or to impeachment of witness's credibility. The witness is called and sworn, but not questioned in chief by the party calling him, being merely offered for cross-examination, is not liable to impeachment of credibility.

			The rules of admissiblity apply to cross-examination.
			e.g. If an expert's out of court statement is inadmissible as hearsay, contents of statement cannot be put into evidence by device of cross-examining another expert witness.
			e.g. Statement made out os court by the accused is inadmissislbe as hearsay to incriminate a co-accused and can't be put to co-assued on cross-examination.
			The Crown may introduce a statement made by the accused only after proving that it was made voluntarily and cannot cross-examine unless it is the same. But a co-accused can cross-examined on the accused's statement without proving voluntariness.

	===Model of Questioning===		===Model of Questioning===

IBJadmin: /* Right of Cross-Examination */

2012-07-09T12:14:37Z

Right of Cross-Examination

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	===Right of Cross-Examination===		===Right of Cross-Examination===
			The Right of Cross Examination is an absolute right and essential to a fair trial.
			If cross examination brings up matters not introduced in examination in chief, then party calling the witness has a right to re-examine
			The basic theory is that each side should have a chance to prove their evidence on each topic with each witness

			What happens if the witness says something false? Offer evidence to contradict.
			It is only possible to do this with material issues, not collateral issues.

	===Scope of Cross-Examination===		===Scope of Cross-Examination===

IBJadmin: /* Cross-Examination */

2012-07-09T11:38:48Z

Cross-Examination

← Older revision		Revision as of 13:38, 9 July 2012
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	=Cross-Examination=		=Cross-Examination=
			The counsel can ask leading questions: there is a presumption that here, counsel and witness are not on the same page. Anwsers of witnesses will be resistive to opposing counsel.

			===Right of Cross-Examination===

			===Scope of Cross-Examination===

			===Model of Questioning===

	=Re-Examination=		=Re-Examination=

	=Rebuttal Evidence=		=Rebuttal Evidence=

IBJadmin: /* Refreshing Memory */

2012-07-09T11:36:38Z

Refreshing Memory

← Older revision		Revision as of 13:36, 9 July 2012
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	*If this fails, the judge has discretion to permit leading questions on the examination in chief or re-examination of a forgetful witness but weight of testimony may be affected by witness's apparent difficulty in remembering.		*If this fails, the judge has discretion to permit leading questions on the examination in chief or re-examination of a forgetful witness but weight of testimony may be affected by witness's apparent difficulty in remembering.

	'''Present memory refreshed/revived'''		'''Present memory refreshed/revived''':
	This refers to memory revived by any writing or other material capable of stimulating witness's recollection (even a song, a scent, a photograph, and allusion, even a past statement known to be false). Sometimes, it may be required to be reasonably contemporaneous with the event.		This refers to memory revived by any writing or other material capable of stimulating witness's recollection (even a song, a scent, a photograph, and allusion, even a past statement known to be false). Sometimes, it may be required to be reasonably contemporaneous with the event.
	*The use of document goes to weight and relevancy.		*The use of document goes to weight and relevancy.