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 defence.

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 though, 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 entitles to remain in courtroom. The accused has to be present to have a trial.

The judge may punish for contempt a witness who deliberately disobeys an exclusion order, but at CL, the judge cannot exclude witness's testimony (goes to weight though) unless a rule of court allows it (there is no such rule in BC).

If the accused is charged with secual offense and the complainant at trial is under 18 or has difficulty to communicate 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 CL is that the accused is entitled to face his accuser. The judge has discretion to exclude public and proceed in camera for criminal proceedings if it is necessary in 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, only if there is sufficient evidentiary foundation for an in camera 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 os 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. Question that suggests the answer desired by the questioner, or 2. Assumes existence of a disputed fact before witness has testified about it (fact still at issue).

Answer is admissible, but entitled to little, if any, weight in determinantion of a critical issue. The trial judge 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 (but can on cross-examination) because there is a presumption that the witness is disposed to calling counsel. There are 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 such and such expressions? Do you agree with it?)
  • If circumstances show that witness is not favourable to a party who called him and is either hostile or unwilling to give evidence and if shows bias in favour of cross-examining party, the right to leading questions is restrained (i.e. hostile witness).
  • Inability of witness to answer questions put in regular way obvisously arises from defective memory or from complicated nature of matter.
  • Also, with 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

Witness must testify from her current recollection at the time of testifying of the 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/she does not realize that there are not giving you what you want, then there are accepted situations where counsel is allowed to remind them.

There are two views of the courts

  • Total memory loss : witness is pushed to the point where they tell everything they could possibly remember. Devoid of memory is the usual standard.
  • Possessed of imperfect present recollection: it is a more liberal interpretation and any witness could say : "May I refer to my notes to be completely accurate". Many judges are reluctant to permit a witness to look at notes (unless police officer), so judges say that 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 has 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 in it. The decision is up to the discretion of the judge and appellate courts are unlikely to interfere with this.

An important factor is whether witness referred to the document just being going to court. Another factor is whether it is readily available, so there is no delay.

Refreshing Memory In Court There are several techniques:

  • Counsel can ask witness to repeat his testimony (more than once if necessary);
  • If the witness fails, the judge should permit 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 weight of testimony may be affected by witness's apparent difficulty in remembering.

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.

  • The use of document goes to weight and relevancy.
  • The party examining the witness must lay a proper foundation and 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 axhibit although opponent may inspect and cross-exmaine and ask for it to be entered into evidence as exhibit.
  • Should read the document silently - i.e. jury should not hear or this would be going against the rule against prior consistent statements.

Past recollection recorded

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

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

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

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

Rebuttal Evidence