7.3 Examination in Chief: Leading Questions, Memory Refreshing & Hostile Witnesses

7.3 Examination in Chief: Leading Questions, Memory Refreshing & Hostile Witnesses

Examination in chief is the process of eliciting a friendly witness's account. Because the advocate and the witness are on the same side, the law imposes constraints found nowhere else in the trial.

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1. The rule against leading questions

A leading question is one that suggests the desired answer, or assumes the existence of a disputed fact. In examination in chief such questions are impermissible on any matter in issue: the danger is that the advocate, not the witness, supplies the evidence.

The rule is not absolute. Leading questions are permitted:

• On formal and introductory matters — name, occupation, the fact of employment at a shop;
• On matters not in dispute between the parties;
• Where the opposing party does not object (in practice most non-contentious background is led by agreement);
• To direct the witness to a topic ("I want to ask you about the evening of 3 May"), as distinct from suggesting the content of the answer.

Where a leading question is asked and objection taken, the answer is not automatically inadmissible; the judge will normally require the question to be re-put, and its evidential value may be reduced because the words came from counsel.

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2. Refreshing memory

In the witness box — s.139 CJA 2003

A witness giving oral evidence may at any stage refresh their memory from a document they made or verified earlier, if:

1. They state in their oral evidence that the document records their recollection of the matter at the earlier time; and
2. Their recollection at that earlier time is likely to have been significantly better than at the time of their oral evidence.

Section 139(2) extends the same rule to a transcript of a sound recording. There is no longer any requirement that the document be contemporaneous — the old common law rule has gone, replaced by the "significantly better" test. The judge's leave is not required, though the court retains control over the manner in which evidence is given.

The document itself does not become evidence merely because it was used to refresh memory. But if the cross-examiner goes beyond the parts used to refresh and cross-examines on other parts, the party calling the witness may put the document in evidence, and it becomes evidence of the truth of its contents under s.120(3).

Out of court

Witnesses routinely re-read their statements before going into court. This is entirely proper — indeed the practice is encouraged (Da Silva; Richardson) — and the fact that it happened should be disclosed to the other side so that any inference about the witness's independent recollection can be explored in cross-examination.

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3. Previous consistent statements

The general rule

A witness's previous consistent (self-serving) statement is inadmissible. Repetition adds nothing to credibility: a liar can repeat a lie.

The exceptions — s.120 CJA 2003

Where an exception applies, the statement is admissible as evidence of any matter stated of which oral evidence would be admissible — that is, evidence of the truth, not merely of consistency. This is a change from the common law and it is examined constantly.

Three points about complaints repay attention. First, the requirement that the complaint be made "as soon as could reasonably be expected" was removed in 2010 — delay now goes to weight, not admissibility. Second, the complaint need not be the first complaint. Third, the fact that the complaint was elicited by a question does not defeat admissibility unless the question was a threat or a promise.

Related common law survivals: a statement made on accusation — what the accused said when first confronted — is admissible to show reaction, and a wholly exculpatory statement is admitted only as to reaction, not as evidence of the facts asserted.

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4. Unfavourable and hostile witnesses

A crucial distinction:

Section 3 of the Criminal Procedure Act 1865 (Denman's Act) provides that a party producing a witness shall not be allowed to impeach their credit by general evidence of bad character, but may, in case the witness shall in the opinion of the judge prove adverse, contradict them by other evidence, or, by leave of the judge, prove that the witness has made a previous statement inconsistent with their present testimony.

The mechanics:

1. Timing. Counsel applies as soon as the hostility becomes apparent — typically the moment the witness departs from their statement. The application is made in the absence of the jury.
2. The judge's role. Whether a witness is hostile is a matter for the judge, who may look at the previous statement, and considers the witness's demeanour and the extent of the departure.
3. Effect of leave. Counsel may ask leading questions, put the previous inconsistent statement, and cross-examine on the inconsistency. Counsel may not attack the witness's general character.
4. Evidential status. By s.119 CJA 2003, where a previous inconsistent statement is admitted, it is evidence of any matter stated of which oral evidence would be admissible — so the jury may act on the earlier statement in preference to the oral testimony. That is a major change from the common law position, where such a statement went only to credit.
5. Judicial direction. Where a witness has been treated as hostile the judge should direct the jury on how to approach the two accounts, and warn them to consider carefully whether they can rely on either.

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Exam traps in this section

• s.139 has abolished contemporaneity — the test is that memory was significantly better at the time the document was made or verified.
• A s.120 statement is evidence of the truth, not just of consistency.
• The "as soon as could reasonably be expected" requirement for complaints has gone.
• Unfavourable is not hostile; only hostility unlocks s.3 of the 1865 Act, and only with leave.
• A hostile witness's previous statement is evidence of the truth under s.119.