The Law of Evidence Fact Sheets - The Course of Evidence

This fact sheet describes the law of evidence as it relates to the treatment of witnesses who give evidence in criminal cases - the course of evidence.

When a party in a case (i.e., the prosecution or defendant) calls a witness to give evidence in support of their case, the witness must either affirm or take the oath. The Oath - the terms of the oath are: “I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth”. The Affirmation - the terms of the affirmation are: “I do solemnly and sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth”. The purpose of the “examination in chief” is to furnish the court with evidence which is relevant and admissible and which supports the case of the party who calls the witness. However, the witness cannot be asked leading questions in general. Leading Questions - are those that suggest the answer required, or those that assume the existence of disputed facts. For example, a question such as “What did you do when you saw Mr X the manager push Mr Z into the circular saw, causing him to slice his finger off?” Certain facts which are not in contention such as name and occupation etc., can be elicited by the advocate by leading questions, and these are not objected to by the other party as it saves court time. The exception to this general rule is where a witness called by a party decides not to tell the truth, and the judge decides that they clearly have no desire to do so, showing animosity to the party calling him/her. In such cases, the judge may direct that the person is treated as a hostile witness, and leading questions may be asked. Refreshing the Witness’s Memory - The general rule is that a witness is not allowed to read from their evidence in the form of a statement etc. prepared for the purpose of litigation. The witness is expected to have a clear recollection of such events, a copy of which the advocate will have in front of him/her (i.e., in a witness statement document). The reason being that it is the oral evidence given in court that is the evidence, and not the document. A witness may, however, refresh their memory from such a document before going into court, but in such circumstances it is desirable for the prosecution

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The Law of Evidence Fact Sheets - The Course of Evidence to inform the defence of this. (There is no obligation on them to do so however, and there is no obligation at all on the defence to do this). When a witness steps into the witness box the rules become stricter. A witness may refresh their memory from a document in court in the following situations: “Where the document was made or verified by the witness contemporaneously with the events to which it relates”. (Attorney-General’s Reference (No.3 of 1979). The test of contemporaneity is a question of fact and degree. The document must have been written or checked either at the time of the transaction or so shortly afterwards that the facts were still fresh in the witness’s memory. (R v Simmonds). The time lapse between the events and the making of the document must be as short as possible, and the test of contemporaneity is unlikely to be satisfied if the notes are made of a routine inspection several days after the event. The document must be either made or verified by the witness in order that it may be relied on to refresh memory. Decided cases have allowed witnesses to refresh their memory from notes made by others (e.g., police officers, colleagues etc.) but only where the notes had been read back to the witness by the maker whilst the events were still fresh in the witness’s memory, and the witness knew the statement to be correct. Police officers have also been allowed to collaborate following an interview and agree the form of a record of the interview which was written by one officer, and then both officers used the notes to refresh their memory. (R v Mills and Rose; R v Bass; R v Adams). It is important to note that the document used to refresh the witness’s memory (e.g., a notebook) is not itself evidence. The witness’s oral evidence is what counts. However, the court may inspect the document, and the witness can be cross-examined on the document. If questions are asked about entries other than those relied on by the witness to refresh his/her memory, the party that called the witness may apply to have the document entered as an exhibit. The effect of this is that the document becomes evidence in itself. Clearly, if the document does not contain anything embarrassing to the party who called the witness, or the witness himself/herself, the admission of the document would be potentially damaging to the other side, as the court can reinforce its memory of the witness by a written version of the story. It may also boost the witness’s credibility in the eyes of the court, as their oral evidence is exactly the same as the notes taken, and there is often an involuntary response in the court’s mind that what was written and said must therefore be true! Such a document is said to go to the witness’s consistency and thus credibility. (R v Virgo). Previous Consistent Statements - Sometimes a party may wish to show to the court that the witness in the box, or a previous witness called by them, is a credible person because they previously made a statement to the same effect as the evidence given on oath in court. This may be in the form of a

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The Law of Evidence Fact Sheets - The Course of Evidence document (such as in a notebook used to refresh a witness’s memory), or where another witness heard the other witness say the statement in question. The general rule regarding previous consistent statements is that they are inadmissible, as they are self-serving. There are some exceptions to this rule, namely where someone who is alleging to be a victim of a sexual offence had previously made a complaint about the matter shortly after the occurrence; or where it is suggested by the other side in cross-examination that the witness has just made the story up; or the first response of an accused made to the police whilst being questioned about an offence. In addition, statements that were said in the heat of the moment, and those relating to identification of the accused, may also be both self-serving and admissible.

The general rule is that all witnesses may be cross-examined by the other side. Failure to do so amounts to acceptance of that evidence given by that witness in chief and prevents the advocates from basing their case on a contradictory account. The object of cross-examination is to qualify, weaken or destroy your opponent’s case and to elicit facts favourable to your own case. The crossexamining party must put to their opponent’s witness every part of their own case about which those witnesses can speak. If this is not done, they will be treated as having accepted the version of their opponent’s witnesses and in their own evidence and their closing speech will not be allowed to attach that version. Where the prosecution intends to put certain matters to the defendant in cross-examination, the prosecution must first give evidence of those matters in their own evidence, i.e., they must lead with evidence of those matters. The cross-examiner may ask leading questions, but not be too argumentative. Questions may be asked to probe the witness’s memory, or consistency, and may insinuate or confront. Generally, witnesses other than the defendant in a criminal case may be asked questions that suggest that the witness is not a credible one. However, if a witness is suggested to be mistaken, or lying, the cross-examiner may not produce evidence to prove that the person is lying where the matter is not directly relevant to the facts in issue, but only the credibility of the witness. These matters are said to be collateral to the facts in issue, and a witness’s answers in reply to such questions are treated as final. (Attorney General v Hitchcock). There are occasions where answers on collateral issues can be rebutted by evidence, such as where a witness has made a previous inconsistent statement (allowed by Section 4, Criminal Procedure Act 1865), or where the Copyright Dr Richard Jones 1999 -3-

The Law of Evidence Fact Sheets - The Course of Evidence witness denies that he/she has a previous criminal conviction (s.6 Criminal Procedure Act 1865). In addition, evidence in rebuttal can be adduced where it is suggested that the witness is biased, or if there is medical evidence to suggest that the witness is unreliable due to a physical or mental defect. (R v Mendy and Toohey v Metropolitan Police Commissioner). A witness’s evidence can also be similarly rebutted where he/she is said to have a reputation for untruthfulness by a witness for the party carrying out the crossexamination.

A witness is re-examined by the party that called him/her following crossexamination by the other party. The purpose of re-examination is to try to repair any damage done to the witness’s story and credibility in cross-examination. Re-examination follows the same rules as examination in chief - i.e., leading questions are not allowed. It must also be restricted to those matters arising out of the cross-examination and no new matters may be introduced without the court’s leave.

Following the close of the defence case the parties make closing speeches to the court, summarising and emphasising their submissions and evidence. In a criminal case the prosecution makes the first speech; the defence makes the second.

The accused person is treated as a competent witness for him/herself (but not for the prosecution) but is not a compellable witness, i.e., he/she cannot be required to give evidence in court. At common law, an accused’s failure to speak in the face of accusations, or failure to appear as a witness could not give rise to any adverse inferences by the courts, except where the accused had been cautioned, or where an accuser had been on even terms with the accused (e.g., a victim of the crime, but not a policeman etc.) However, this position was altered following the Criminal Justice and Public Order Act 1994. Section 34 of the Act allows an adverse inference to be drawn by the court following an accused’s failure to mention facts when questioned pre-trial and after being charged, whilst s.35 deals with an accused’s silence in court. The courts have recently interpreted the effect of s.35 and have outlined a model direction to the jury to be made by a judge in summing up. In R v Cowan, Gayle and Ricardi the direction was said to have to cover: Copyright Dr Richard Jones 1999 -4-

The Law of Evidence Fact Sheets - The Course of Evidence the fact that the burden of proof lay with the prosecution that the accused is entitled to remain silent that the jury could not infer guilt by the accused’s silence unless they took the view that the case against the accused is made out on other evidence produced at trial (i.e., the accused cannot be convicted solely by an adverse inference) that an adverse inference may be drawn if the jury believe that the reason the accused has not testified is because he/she has no answer to the allegations that would stand up to cross-examination. In addition, the Practice Direction (Crown Court: Evidence: Advice to Defendants) (1995) requires that the judge warns the defendant that the point in the trial has been reached at which he may give evidence, and that if he declines to do so the jury may draw an adverse inference from this failure. If an accused does give evidence, the examination in chief is bound by the same rules as for any other witness. The scope of cross-examination, however, is more restrictive as, in general, the prosecution may not adduce evidence of an accused’s bad character. At common law there are exceptions in that the prosecution can lead with evidence of bad character where the rules of similar fact evidence are satisfied (for example where the effect of the attack on an accused’s credibility is outweighed by the obvious common sense that the facts in issue are so very similar to those of previous occasions for which the accused has been linked, that to avoid the matter would be “an affront to common sense”) or where the defence has raised the good character of the defendant in evidence. The Criminal Evidence Act 1898 section 1 preserves the common law restrictions, but alters the position where the following apply: the defendant, or one of his witnesses, or his advocate asks questions of the prosecution witnesses in order to establish his good character, or where the defendant, or one of his witnesses, or his advocate “cast” imputations on the prosecution witness’s character, e.g., calling them a liar, accusing a policeman of corruption and fabrication of evidence etc., or where the defendant gives evidence against a co-defendant.

Evidence of previous convictions is considered to be too prejudicial to a defendant to be allowed, as a jury will assume that because the defendant has done it before, he/she will have done it again, and be guilty of the events in issue. Where the similar fact doctrine applies, evidence of the details of previous convictions or commissions of crimes may be brought before the court. In addition, where the defendant’s good character has been raised, the prosecution may adduce evidence of a previous conviction (but only the fact of the conviction - not the details). Where s.1 of the Criminal Evidence Act

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The Law of Evidence Fact Sheets - The Course of Evidence 1898 applies, i.e., where prosecution witnesses characters have been attacked, or evidence is given against a co-defendant, the prosecution may adduce evidence about the fact of a previous convictions. The provisions of the Rehabilitation of Offenders Act 1974 may apply to certain spent convictions in that they should not be referred to in open court, without the judge’s authority, which will only be given in the interests of justice (for example in cases involving similar fact evidence).

Attorney-General v Hitchcock (1847) 1 Exch. 91 Attorney-General’s Reference (No.3 of 1979) 69 Cr. App R 411 Criminal Evidence Act 1898 Criminal Procedure Act 1865 Criminal Justice and Public Order Act 1994 Practice Direction (Crown Court: Evidence: Advice to Defendants) (1995) R v Adams (1957) (unreported) R v Bass (1953) 37 Cr. App. R 51, 59 CA R v Cowan, Gayle and Ricardi (1995) R v Mendy (1976) 64 Cr. App. Rep 4 (CA) R v Mills and Rose (1962) Cr. App. R 336 R v Simmonds (1967) 51 Cr. App. R 316 Toohey v Metropolitan Police Commissioner (1965) AC 595.

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