Questioning of Witnesses In Court

There are three scenarios under which a witness can be questioned in Court in criminal and civil cases and we shall deal with these in turn.

Examination in Chief

Examination in Chief is the first stage of the process of questioning a witness. This is the questioning of the witness by this legal representative in offer to annunciate those facts that are beneficial to his case. In examination in chief leading questions may not be asked. These questions are those that suggest an answer to the witness. Such as "was the man you saw wearing an orange coat" rather that asking "what was the man you saw wearing" and "did the man look suspicious" would be leading rather than "how as the man acting?"

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 them. In such cases, the judge may direct that the person is treated as a hostile witness, and leading questions may be asked.

The leading question rule is also relaxed in relation to introductory matters such as name and address and undisputed matters. In addition the witness may not be questioned as to whether or not they made previous consistent statements consistent with their testimony. However there are some exceptions to this rule.

Under the Civil Evidence Act 1995 s 6 (2) the previous statements of a witness may be admitted with the leave of the court, both as evidence of the facts contained in them and also as evidence of consistency.

In cases involving complaints as regards sexual offences, if the complaint is admissible then the person to whom the complaint was made may be called to give evidence not only of the fact that the complaint was made but also the actual details of the complaint. The complaint may be one that has been made orally or in writing. Such evidence is allowed to go towards the credibility of the complainant's allegation, although it will not amount to actual evidence of the lack of consent as it would be hearsay (see later). There are several qualifying circumstances for the exception to apply, including that the complainant testifies, the statement was made voluntarily and that the statement, taking into account factors such as the age of the complainant and the nature of the offence, must be made at the first reasonable opportunity.

If it is suggested in cross examination that the witness had fabricated the testimony then evidence of pervious constitent statements will be allowed. A witness can also state that they have previously identified the accused as the offender.

The relevance of previously consistent statements will depend on the nature of the proceedings. In civil cases the statement is not only relevant to the maker's credibility but also to the truth of its factual content under section 6(2) of the Civil Evidence Act (1995). In criminal proceedings the statement is not relevant to the facts in issue only the credibility of the maker.

In regards to refreshing of the witnesses memory, the general rule is that a witness is not allowed to read from their evidence in the form of a statement or other document prepared for the purpose of litigation. Before going into court the witness is allowed to refresh their memory from the statement however.

A witness in court may refresh their memory from a document in two situations. Firstly, where the document was made or verified by the witness contemporaneously with the events to which it relates. 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. 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. Secondly the document may be admitted at the trial judge's discretion.

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 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. The document used to refresh the witness's memory is not itself evidence. 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 their memory, the party that called the witness may apply to have the document entered as an exhibit.

Cross Examination

We shall now look at cross examination. This is the second stage of the questioning process. Unlike examination in chief, the cross-examiner may ask leading questions. Questions may be asked to probe the witness's memory, or consistency, and may insinuate or confront.

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. The object of cross-examination is to qualify, weaken or contradict your opponent's case and to elicit facts favourable to your own case. The cross-examining party must put to their opponent's witness every part of their own case which is in dispute and that the witness can comment on. If not, then the facts not questioned will be taken as the accepted 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 general rule is that 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, and is only relevant to 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. A collateral fact is that the party cross examining could not have called evidence on unless the witness had been called. For example if a witness to a car crash denies that he speaks English and is allowed to give evidence of what he saw of the crash through an interpreter the fact that he does speak English can not be sought to be proven by the cross examiner a it is a collateral issue. It does not go to the facts in issue ( i.e. was the person on the bike speeding etc) Note it would be very different if the cross examiner sought to bring the evidence that the person, accused of being involved in a bank robbery, spoke English and was heard doing so at the scene of the robbery as this will be a fact in issue. ( i.e. was the person who robbed the bank him as several witnesses heard him speaking in English?)

There are occasions where answers on collateral issues will not be treated as final.
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. Where a witness is asked questions about previous inconsistent statements his answers will not be final, likewise where the witness denies that they have a previous criminal conviction. 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 cross-examination.

The YJCEA precludes the cross examining of witness by the accused if the complainant is one in a sexual offence under section 34, or they have witnessed the commission of the offence and was under 17 when examination in chief was given. Under section 36 the judge may also prevent the accused personally cross examining the witness if he is satisfied that the quality of the evidence may be aversely affected and the ban would not be contrary to the interests of justice.

As regards to cases where a person accused of asexual offence by counsel, no evidence may be adduced or question asked of the complainant about their sexual behaviour without the leave of court under sections 41(2) and 41(6).

Once examination in chief and cross examination have been carried out re examination can take place. A witness is re-examined by the party that called them following cross-examination 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 so 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.

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