The Law of Evidence Fact Sheets - The Course of Evidence

THE COURSE OF EVIDENCE - INTRODUCTION

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.

EXAMINATION IN CHIEF

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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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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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.

CROSS-EXAMINATION

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 cross-
examining 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

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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 cross-
examination.

RE-EXAMINATION

A witness is re-examined by the party that called him/her 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 - 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.

CLOSING SPEECHES

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

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:

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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.

PREVIOUS CONVICTIONS

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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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).

REFERENCES

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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