Published: Wed, 07 Mar 2018
Examination in chief
When counsel for the prosecution conducts an examination in chief, the aim is to elicit factual evidence which supports the parties case, enhance the witnesses personal credibility and anticipate issues to be raised in cross examination. A witness can consult a document made by him to refresh his memory if he confirms that the document records his recollection at an earlier time and his recollection of the matter is likely to be significantly better at that time- s 139 CJA 2003. A witness statement can be admitted as evidence of its truth as per s 120 CJA 2003.
This statements adds to the witness’s evidence but does not take it’s place. Where a witness cannot recall some facts about his testimony and is generally not a convincing witness this can be described as an unfavourable witness. A witness is only described as hostile where they display no desire to tell the truth on behalf of the party that has called them. In this case, the advocate can cross examine his own witness under s3 Criminal Procedure Act 1865.
Where the advocate begins to cross examine the witness, his aim is to elicit evidence that supports the cross examiner’s case, test the truthfulness of the answers given during direct examination and also to undermine the witnesses credibility. During questioning the advocate can seek to prove that the witness has made a previous inconsistent statement according to s4 CPA 1865. He will do this by drawing to the attention of the witness the parts of the statement that are inconsistent with his current testimony. The witness will therefore be asked if he wishes the court to adopt the version of his evidence given in his statement or his oral evidence.
Questions asked during cross examination is subject to the ‘finality rule’ which is that evidence cannot be called to rebut the witnesses answer even if the cross examiner does not accept the witnesses evidence. The reason for this is that the witness’s credibility is not the central issue but runs parallel to main issue which is the defendant’s guilt or innocence. However in some cases there are exceptions to the finality rule and the common law allows the advocate to adduce evidence to contradict the witness to establish that the witness is biased, made a previous inconsistent statement, has previous convictions or suffers from a physical or mental disability.
- Bad Character Evidence: this sort of evidence is usually raised in cross examination. Under s100 (a) CJA 2003 the court may only grant leave to admit evidence of the bad character of someone other than the accused if it is important explanatory evidence, it has substantial probative value or is of substantial importance in the case as a whole.
- Re-examination: Here the advocate attempts to repair any damage inflicted during cross examination and leading questions are not permitted
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