Trial Questioning

In the average trial the prosecution or claimant will begin and call their witnesses first. Once they have completed their evidence the defence/defendant will then pro­duce their witnesses and after the half-way stage the defence call their witnesses.

Each witness will be subject to questioning in three stages (1) evidence in chief (2) cross-examination and (3) re-examination. It is the duty of the judge to ensure wit­nesses are treated properly and the judge may disallow particular questions to be asked if they amount to bullying or disrespectful treatment of a witness or breach established rules on the questioning of witnesses. If the witness breaks down in the witness box the judge can decide whether to adjourn the trial. As indicated in R v Lubemba; R vJP [2014] EWCA Crim 2064 “a trial judge is not only entitled, he is duty bound to control the questioning of a witness. He is not obliged to allow a defence advocate to put their case. He is entitled to and should set reasonable time limits and to interrupt where he considers questioning is inappropriate” [51].

As discussed in Chapter 3, an advocate will have to be mindful of their relationship and the approach that they take in dealing with vulnerable witnesses and clients and this extends to questioning at trial. When dealing with a vulnerable witness, advocates should adapt their normal questioning structure. Short questions that are simple to understand and words that have clear meanings are preferable. An advo­cate should also avoid any words with double meanings. Failing to adapt the style of questioning could result in ‘tag’ questions being asked. This is where confrontational questions are put to the witness in the style of making an assertion and then ask­ing for confirmation.

Advocates can find useful resources and toolkits to help them with questioning style by visiting the Advocates Gateway website listed at the end of this chapter.

We will start by looking at some of the rules of questioning.

3.6.1 Examination-in-Chief

This is the process by which the party calling the witness elicits their testimony. It is a process to allow a party's own witness to tell their story. The main purpose is to obtain answers which support the party's case and raise matters which the advocate anticipates will be brought up by the opposing party on cross-examination. It is also an opportunity to showcase the witness's credibility to the judge or jury.

During examination-in-chief ‘leading questions' are not usually permitted. A leading question is one which already has an answer implicit within it. An example would be “is it correct to say that at that stage you lost your temper?” By asking this question an advocate has led the witness down the route of suggesting that they lost their temper without first establishing that this was indeed the witness's emotion at the time. A better question would be “how did that make you feel at that point?”

3.6.2 Cross-Examination

This is the questioning of one party's witness by the opposing party and the purpose is to test the truthfulness of the evidence that has just been given by the witness in their evidence-in-chief and/or undermine the witness's credibility.

During cross-examination an advocate can ask ‘leading questions'; this is because at this point the witness's account has been given and is known and leading questions may be useful in progressing the questioning and speeding up the trial. However, such questions should be relevant and the witness should not be harangued, bullied or misled by this form of questioning. The judge may intervene to prevent abuse, irrelevance or repetition.

During cross-examination an advocate must put the opposite party's version of events to the witness so they can comment on it. They should not be taken to have accepted it. In addition, where the witness's evidence has been challenged, they should be given an opportunity to respond to that challenge.

Questions asked in cross-examination to undermine a witness's general credibility are generally subject to the ‘rule of collateral finality' (this is a matter of convenience to avoid slowing down trials). This means that usually evidence cannot be called to rebut a witness's first answer - even if the advocate does not accept the answer given by the witness. This is because the witness's credibility is regarded as a col­lateral or secondary issue to the important central issue at trial which is whether the defendant is innocent or guilty.

It is recognised, however, that the ‘rule of collateral finality' could impede the ability to uncover the truth and so cases have recognised that in certain situations, it may be appropriate to continue to question a witness about matters which are not cen­tral to the issues in the trial but are important to, for example, uncovering a hidden bias of the witness, uncovering that the witness has a reputation for lying or has relevant previous convictions or that the witness has a physical or mental condition that might impact on their competency as a witness.

3.6.3 Re-examination

This allows the party who originally called the witness to ask them questions again but only on matters arising from cross-examination. If a party forgets to ask a wit­ness a question during examination-in-chief and remembers at a later stage, he/she will need to ask the judge for permission to cross-examine on this point. The general rule however is that questions on re-examination are restricted to those matters arising during cross-examination.

Confidence Exercise

Try this One on Your Own!

Consider the following excerpt from a fictional examination-in-chief of a child witness aged 13. Consider what might be wrong with the style of the questions that have been highlighted in bold by considering the rules of trial question­ing discussed in this section. Rewrite the questions in a way that you consider would be a more acceptable style and wording:

Advocate: Can you tell the court what you were doing on that day?

Witness: I was walking on Latimer Street with my friend minding my own busi­ness when it happened.

Advocate: Is that when the defendant started the fight with you?

Witness: Hmmm, what do you mean?

Advocate: Would it be fair to say that by “minding my own business” you mean that you were not looking to get into any trouble because you don't like to challenge people, do you?

Witness: I suppose so.

Advocate: What did the defendant do then?

Witness: He started punching me and my friend.

Advocate: In your experience, why might he have done this?

Witness: Because he is not right in the head is he?

Advocate: And what did your friend say and do next after the defendant had punched him in the head?

3.6.4 Questioning Special Groups

A witness is under a legal obligation to answer questions, or they will be in contempt of court. However, there are some groups who are exempt from this requirement. An advocate must identify at an early stage whether a witness falls into one of these special groups and if so, what limitations will be placed on the ability to call the wit­ness or to put certain questions to them.

3.6.4.1 Defendant in Criminal Proceedings

The Criminal Evidence Act 1898, s. 1 made the defendant competent to give evidence for the defence in all criminal proceedings but not compellable to do so. This means a defendant can choose to exercise their ‘right of silence'. However, a defendant can­not give evidence against himself and for the prosecution (see s. 53(4) of the Youth Justice and Criminal Evidence Act 1999) as he will not be considered either compe­tent or compellable in those circumstances.

A defendant is competent but not compellable as a witness for a co-accused and therefore cannot be forced to testify in support of somebody charged with them. A defendant is, however, neither competent nor compellable to give evidence for the prosecution against a co-defendant for the obvious reason that a defendant may have a motive to serve in playing down their own role to decrease their sentence or pass on the full blame to another (this is confirmed in s. 53(4) of the Youth Justice and Criminal Evidence Act 1999).

If a defendant decides to testify, he/she must be called before any other defence wit­nesses take the witness box. This is to prevent a defendant tailoring their evidence to fit what they have heard in court. A defendant can choose not to enter the wit­ness box and exercise the right of silence under Criminal Justice and Public Order Act 1994, s. 35 (although adverse inferences might be drawn by the jury - see Chapter 5, 5.5-5.6).

3.6.4.2 Spouses

In civil proceedings a spouse (those who have gone through a formal marriage cer­emony including civil partnerships and same sex marriages) is a competent witness under the Evidence (Further Amendment) Act 1853 but is not a compellable witness and so cannot be made to testify. It remains arguable that under the principle in Monroe vTwistleton (1802) Peake Add Cas 219 if the event in question occurred during the marriage/civil partnership, then even if the couple has since divorced, the spouse can rely on a claim of non-compellability to give evidence for the opposing party.

In criminal proceedings a spouse is a competent witness and can also be compelled to give evidence for the defendant. However, in most cases the spouse (excluding former spouses) cannot be compelled by the prosecution to give evidence against the defendant although they are still competent as a witness and so can choose to give evidence for the prosecution voluntarily (see s. 80 of the Police and Criminal Evidence Act 1984).

There are limited situations, however, when a spouse can be compelled by the pros­ecution and so forced to testify against the defendant. Under the Police and Criminal Evidence Act 1984, s. 80(2A) a spouse is compellable if:

1. the defendant is charged with an offence of violence or attempted violence, or the threat of violence towards the spouse or any child under 16, or

2. the defendant is charged with a sexual offence or attempted sexual offence against any child under 16 or any attempt to commit this offence.

Where the spouse (or civil partner) has the choice whether to testify or not, any fail­ure to testify cannot be made the subject of comment by the prosecution (see s. 80(8) of the Police and Criminal Evidence Act 1984) - however this restriction applies to the prosecution and not to the judge or the co-defendant.

3.6.4.3 Children

Children are competent to give evidence if they meet the competency test under s. 53(3) of the Youth Justice and Criminal Evidence Act 1999. An advocate who wishes to call a witness whose competency is in dispute must prove on a balance of probabili­ties that they have sufficient understanding and meet the test under s. 53. However, under s. 55(2) of this Act only children who have attained the age of 14 can give sworn evidence, children under 14 must give unsworn evidence. Children are treated as vulnerable witnesses and so entitled to special measures as discussed above.

3.6.4.4 Hostile Witnesses

An advocate may wish to call their own witness but find that the witness is reluctant to repeat the same version of events that they have previously given, for example, in a witness statement. A witness who deliberately refuses to repeat their original tes­timony may be regarded as a ‘hostile witness'. A hostile witness does not necessarily need to have malicious intent in refusing to answer questions or give the same ver­sion of an earlier account. It may be that the witness is simply frightened of repercus­sions from the defendant or his/her associates. It is for the judge to decide whether a witness is a hostile witness. This is because treating a witness as a hostile witness will involve questioning that witness as if they were a witness for the opponent.

An ‘unfavourable witness', however, is someone who may potentially damage a par­ty's case simply because they do not ‘come up to proof' and relay their oral testimony as expected, e.g. because they cannot recall some facts. An advocate must simply try to undo any damage that an ‘unfavourable witness' has done by giving weak or inconsistent evidence by calling other witnesses to help support the defendant's case.

An advocate who faces a hostile witness may, with the permission of the judge, cross-examine that witness by asking leading questions.

Section 3 of the Criminal Procedure Act 1865 permits the advocate to ask his own witness whether he has made an earlier statement which is inconsistent with his pre­sent testimony. The previous inconsistent statement can be admitted as an excep­tion to the hearsay rule under s. 119 of the Criminal Justice Act 2003 (see Chapter 5).

The admissibility of previous inconsistent statements is governed by ss. 4 and 5 of the Criminal Procedure Act 1865 (which applies to civil as well as criminal proceed­ings) and s. 119 of the Criminal Justice Act 2003 (which applies to criminal proceed­ings only).

3.6.4.5 Protected Witnesses

There are certain witnesses who are regarded as ‘protected witnesses’ rather than vulnerable witnesses but who may receive the same limitations or adaptation of the rules of questioning. For example, under ss. 34 - 39 of the Youth Justice and Criminal Evidence Act 1999 protected witnesses are child witnesses and complainants in sex­ual offences. A protected witness cannot be questioned by a defendant acting in person at a trial - see ss. 34 and 35 of the 1999 Act. Either the accused will be asked by the judge to appoint their own legal representative in order to cross-examine the witness or if the defendant fails to do so then the court can appoint a legal repre­sentative for them - see s. 38

The court can of its own motion or after hearing representations make a direction that any witness should be protected from cross-examination by the defendant if the quality of the evidence is likely to be diminished by that cross-examination or even if it would improve the quality of the evidence of the witness by giving the direction - see s. 36 of the 1999 Act.

The judge must give a warning to the jury to ensure that the defendant is not preju­diced by any inferences to be drawn from the fact that he has been refused permis­sion to cross-examine the witness.

Where the defendant is charged with a sexual offence (rape, burglary with intent to rape, indecent assault and unlawful sexual intercourse) s. 41(1) of the 1999 Act provides that in the absence of leave, the accused and his advocate are prevented from adducing or seeking to elicit in cross-examination ‘any sexual behaviour of the complainant’.

The judge may give leave if the evidence or question would enable the accused to explain or rebut any evidence adduced by the prosecution about any sexual behav­iour of the complainant or the evidence relates to an issue and the purpose is not to impugn the complainant’s credibility and a refusal of leave might have the result of rendering unsafe a conclusion on any relevant issue in the case.

3.6.5 Challenging a Witness's Credibility

It is possible to introduce the bad character of a witness or third party. As we will see in Chapter 5 for a defendant in criminal proceedings, evidence of previous convic­tions or reprehensible behaviour is, in limited circumstances, admissible to challenge the credibility of a witness or a third party.

The limitations on the use of bad character evidence are there to protect witnesses and other persons participating in court proceedings from suffering unnecessary embarrassment or being asked irrelevant questions. As such, the bad character evi­dence must be evidence that would severely damage the credibility of the witness or third party and the witness’s or third party’s evidence must play a prominent role in the case itself so that it is important to challenge the credibility of the person.

In the case of a witnesses’ bad character the relevant statutory provisions are found in s. 100 of the Criminal Justice Act 2003. Such evidence can be introduced by either party if the evidence is bad character evidence within the meaning of s. 98 of the 2003 Act. There are three gateways available under s. 100. In addition, admissibility is only automatic for one of the gateways (s. 100(1)(c)), in all other instances permission of the court is required (see s. 100(4)). The three gateways are:

1. It is important explanatory evidence - s. 100(1)(a). ‘Explanatory evidence’ means that the evidence itself must be used to explain important information without which the judge or jury could not understand other important evidence.

2. It has substantial probative value in relation to (1) a matter in issue and (2) is of substantial importance.

3. All the parties agree - see s. 100(1)(c). This gateway does not require the permis­sion of the court unlike (a) and (b).

We will continue working with aspects of the evidential rules on character in Part B.