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Trial Sequence and Oral Evidence

Law

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11 views7 pages

Trial Sequence and Oral Evidence

Law

Uploaded by

beyoncetanyaradzwa5
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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Stages in trial process, and

the presentation of oral


evidence:
Chapter 29:Oxford Textbook
Examination in Chief

• It is the first stage in the process of putting evidence on record.


• It is followed by cross-examination and re-examination (i.e. these are not
mandatory)

• Examination in chief - evidence is in support of a party’s case i.e. favourable to


version of the party calling witness. (You are building your case)

• Using open-ended questions with the witness assists the witness to give an
answer that supports the version of the party calling witness.

• The party presenting evidence chief waits for this evidence to be challenged by
way of cross-examination.
Prohibition in leading questions during evidence in- chief

General rule: the witness must give their account in their words in response to
specific questions asked.

The above rule is usually expressed in the following terms “a party may not ask
leading questions to their witness.” ie : a party may not put words in the mouth of
their witness by indicating which answer is required eg;

“Were you buying a burger at steers on Hill Street at 10am on 25 June 2024?” (non-
acceptable)

Conversely, open-ended question such as:


Another applicable principle is that a party leading evidence in-chief may not
assume an existence of a fact that still requires proof:

“Where were you standing when the accused started shooting the victim.”

Leading questions encourage a witness to state something that he/she has no


actual knowledge of.

If leading questions are left unchecked, this may be a ground of irregularity which
may lead to the verdict being set aside on appeal.

NB: Leading questions reduce the weight of the answer as it leads to the witness
only confirming or denying the questioner's statement.
Exceptions to rule against leading questions
• As noted, the general rule is that leading questions are impermissible in examination in
chief.
• There are, however, some exceptions:
• Non contentious issues e.g. name of witness – Are you Peter Pan?
• It might be the only way to cover a specific aspect of a case.
“e.g.: the witness from the prosecution told this court that he saw you running from the
crime scene” was it you?

Procedure for evidence in chief


The witness will respond to a series of questions from counsel. This ensures that a witness
focuses on what is relevant and does not venture into inadmissible areas.

The general practice is that witnesses do not sit in court prior to be called to give evidence
(ensures that witnesses give evidence without any possibility that they have consciously or
unconsciously tailored their evidence to fit in with what they heard a previous witness says)
The situation is different when it comes to the accused person because the accused
is required to be in court throughout the trial.
Remember: S158: “all criminal proceedings in any court shall take place in the
presence of the accused.”
This is right is highlighted in section 35(3)(e) of the Constitution: Every person has
a right to a fair trial, which includes the right -
(e) to be present when being tried...

• This means that the accused could consciously or unconsciously adapt his/her
evidence based on what he heard other witnesses say. To counter this, the CPA
provides that the accused shall testify before defence witnesses unless the court
allows otherwise.
• Sometimes an accused choses not to testify but at a later stage decides that they want to testify.
The accused will still be allowed to testify but the court must draw any appropriate inferences.

• Usually, expert witnesses are present when other expert witnesses give evidence because they
are less likely to tamper with the evidence. Also, they would not be able to comment on
evidence they haven’t themselves heard.

Practical aspects of evidence in chief.


• The party presenting its case is known as dominus litis meaning that the party presenting
the case chooses which witnesses to call, the sequence of the witness and what questions
to ask each witness.
• A party calls the witness that will best advance their case.
• Different techniques are needed fir witnesses who are not accustomed to give evidence
especially if the witness is uneducated (ie: short simple questions)
• More experienced witnesses may need less guidance.
• NB: Consult with the witness so that you know what the witness will say but do not
rehearse.

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