Examination of Witnesses

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Ultimately the presentation of testimony is regulated by the trial judge's discretion rather than the rules of law. In most jurisdictions, witnesses are entitled to an interpreter. The order of examination is the following:

1. Direct examination / Examination in chief

2. Cross-examination

3. Re-Examination

Exclusion of Witnesses

Immediately before evidence is given, the counsel may ask the judge to order the exclusion from the courtroom of prospective witnesses in the case. The decision is left to the judge but the exclusion of witnesses is usually allowed unless challenged by the defense.

The order can be made at the preliminary hearing for a civil or criminal trial, but it is inappropriate at a sentencing hearing where guilt was not an issue. After cross-examination, however, the witness stays in the courtroom for recall.

Unless a rule of court provides otherwise, a judge in a civil trial may not exclude a party to the action who intends to testify. In criminal trials, the accused is entitled to remain in the courtroom. The accused has to be present in order to have a trial.

The judge may punish a witness for being in contempt of court if the witness deliberately disobeys an exclusion order, but at CL, the judge cannot exclude the witness's testimony unless a rule of court allows it. This can, however, have some influence on the weight given to the witness's testimony.

If the accused is charged with a sexual offense and the complainant at trial is under 18 or has difficulty communicating evidence because of mental or physical disability, the judge may order that the complainant testify outside the courtroom or behind a screen or other device that prevents complainant from seeing the accused (Criminal Code, S. 486 (2.1)).

A fundamental principle of the CL is that the accused is entitled to face his accuser. The judge has discretion to exclude the public from criminal proceedings and instead record the trial on video if it is necessary in the interest of public morals, maintenance of order, or proper administration of justice (Criminal Code, S. 486). The judge may also close the courtroom to receive the testimony of a witness, but only if there is a sufficient evidentiary foundation for an video-recorded hearing. The court has inherent jurisdiction to allow witnesses to testify in disguise or from behind a screen so that their anonymity will be preserved.

Direct Examination / Examination in Chief

There is a general assumption that counsel and witness are on the same side. Direct examination is subjected to two major rules: leading questions and refreshing memory. Questions can be asked in an open manner on any relevant and material matter.

Leading Questions

Witnesses should not be asked leading quesitons on disputed matters. There are two forms of leading questions: 1. Questions that suggests the answer desired by the questioner, or 2. Questions that assume the existence of a disputed fact before the witness has testified about it.

The witness's answer is admissible, but entitled to little, if any, weight in the determination of a critical issue. The trial judge, however, has discretion to relax the prohibition and permit a party or his counsel to ask leading questions of a witness called by the party (much depends on whether opposite party objects to use of leading questions). On material points, a party must not lead their own witness, because there is a presumption that the witness is disposed to calling counsel. On cross-examination, however, this is acceptable. There are also some possible exceptions:

  • Purpose of identifying persons or things - can point witness directly to them (e.g. to establish qualifications).
  • Where one witness is called to contradict another as to expression (e.g. did other witness use a specific expression? Do you agree with it?)
  • If circumstances show that a witness is not favourable to a party who called him and is either hostile or unwilling to give evidence, or if a witness shows bias in favour of the cross-examining party, the right to leading questions can be restrained (i.e. hostile witness).
  • Inability of a witness to answer questions that obviously arises from a defective memory or complicated issue.
  • With the court's leave, a witness having difficulty testifying because of youth, lack of education, mental disability or other reason may be asked leading questions.

Refreshing Memory

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:
    • 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.
    • Possessed of imperfect present recollection: a more liberal interpretation where any witness can ask to refer to notes in order to ensure complete accuracy.
      • Many judges are reluctant to permit a witness to look at notes (unless police officer), so most judges say there must be total memory loss.

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.

  • 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.

Refreshing Memory In Court

  • Counsel can ask witness to repeat his testimony, more than once if necessary.
  • If the witness fails, the judge should permit a question containing an allusion to the omitted matter.
  • If this fails, the judge should allow a question to be put to the witness explicitly containing the omitted matter.
  • If this fails, the judge has discretion to permit leading questions on the examination in chief or re-examination of a forgetful witness, but the weight of the testimony may be affected by the witness's apparent difficulty in remembering.

Present memory refreshed/revived: This refers to memory revived by any writing or other material capable of stimulating a witness's recollection. Even a song, a scent, a photograph, an allusion, or a past statement known to be false can fall into this category. Sometimes, it may be required to be reasonably contemporaneous with the event.

  • The use of document goes to weight and relevancy.
  • The party examining the witness must lay a proper foundation. The judge decides if this has been done.
  • Personal knowledge of forgotten fact.
  • Witness's memory must be exhausted.
  • Reading document could revive recollection.
  • Document or other material must be authenticated, but not evidence or an exhibit, although opponent may inspect/cross-exmaine and ask for it to be entered into evidence as an exhibit.
  • Should read the document silently. The jury should not hear, or this would go against the rule against prior consistent statements.

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

The counsel can ask leading questions. There is a presumption that counsel and witness are not on the same page. Anwsers of witnesses will be resistant to opposing counsel.

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 the 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? Counsel should offer evidence to contradict.
  • It is only possible to do this with material issues, not collateral issues.

Scope of Cross-Examination

The scope is not confined to examination in chief. Even though a witness gives favorable evidence to the examiner in chief, the opposing counsel has a chance to solicit favorbale 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, undercut damaging testimony on examination in chief, and impeach the witness's credibility.

At CL, the scope is not limited to matters raised on examination in chief, but it must be relevant (relate to a material fact, a relevant fact, or impeachment of witness's credibility). The witness is called and sworn, but not questioned in chief by the party calling him. Rather, he is merely offered for cross-examination and 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 the statement cannot be put into evidence by device of cross-examining another expert witness.

e.g. Statement made out of 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

Leading questions are allowed on cross-examination, but the judge has discretion to disallow them when the witness appears eager to please the cross-examiner. Favorable witness answers to leading questions on cross-examination are entitled to no weight.

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

There are three forms of cross-examination and they can all be used together:

  • Questions about facts that are material and relevant
  • Questions that aim to weaken examination on testimony given in direct examination (e.g. suggest that it is exaggerated or incomplete)
  • Questions that aim to impeach the witness's credibility (untruthful, inaccurate, and dishonest statements, or involvement in discredited acts)

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. 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 the 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 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.