#17489 - Evidence Examination In Chief General Copy - Evidence I: Foundations

EXAMINATION IN CHIEF THE COURSE OF WITNESS TESTIMONY (1) (2) (3) (4) Witness sworn in Examination in chief Cross examination Re-examination.When the witness is asked questions by the side who called them. CONTENTS 1. Leading questions 2. Hostile witnesses 3. Refreshing the witness' memory LEADING QUESTIONSA question with an intended answer with the answer contained in it • A rhetorical question The general rule:A witness may not be asked a leading question during the examination-in-chief. • • • You want the witness to tell their own story, in their own words, in their own way. Its wrong to take facts in dispute for granted in a question. You can ask whatever you want if the answer is not contained in that question. Let's say we have an assault - the first thing to show - this A was the person assaulted, the perpetrator had the requisite Actus Reus, and the Mens Rea as well. Exceptions: 1. Non-contentious issues • Witness may be called, and the barrister may say, so are you Kim Irwin, a law student at UCD - that's a leading question but it's not in contest at trial • For expedience purposes. • Plant the factual questions that are not at contest. 2. Aiding recollection • What happened on the _ of _ - the witness cant remember - the barrister can say, is it true that you blah blah blah on the __ of __ 3. Hostile witnesses 4. General discretion • The judge has general discretion to allow a leading question if its in the interest of fairness. If a leading question is asked outside the confines of exceptions: • • It is on the onus of the other party to object If no one intervenes to stop it or object it's presumed that the side that would object is waiving that right or entitlement. HOSTILE WITNESSES • • • • • Refusal to answer Body language Deliberately evasive - not giving the info that they've been called to give. These things cannot really be legally categorised - it's a case by case thing, really. Change their mindThe trial judge has a lot of discretion, therefore. (A) Voire Dire (B) Jury is absent (C) Absence of definite criteria. • If a witness is compelled they could likely be hostile, but not always. Can you call lies if you call the witness? Criminal Law Revision Committee (1972) '[I]t would be repugnant to principle and likely to lead to abuse, to enable a party, having called a witness on the basis that he is at least in general going to tell the truth, to question him or call other evidence designed to show that he is a liar'. • We want to incentivise witnesses to come to the stand, not put them off. Coming into court is already an unpleasant scenario without a lawyer claiming lies • So in a trial, if the witness you call is telling a different story to the court than what they told you, you cannot comment on this and claim that they are lying. • So what if this happens? People (AG) v Taylor A party can apply to have a witness declared a 'hostile witness'. (1) Apply to the judge to have declared a hostile witness. (2) Put the previous statement to the witness. (3) Call the person who took the original statement. (4) Bring the original witness back to the stand. (5) If the witness admits the contradiction - credibility may now be undermined.