Prosecution has power to determine how many witnesses & order in which to call them.
The rule is that he is not bound to call all the witness listed at the back of the information or charge.
When the first witness is called the duty is on the registrar to ask the other witnesses to be out of court and out of hearing. Ss. 212 EA, 238(1) ACJL.
This out of court and hearing doesn’t apply to professional witnesses – expert witnesses e.g. medical doctors, forensic experts. This is because their own evidence relates to what they do, so there is no bias.
What is the effect of a witness that remains in court? Ss356 (3) ACJA – the fact that he remained in court will not nullify the evidence, but the weight that is to be attached will be reduced,
There are ways how the evidence of the witnesses will be laid down before the court.
What is examination in chief?
This is the way a party questions his own witness for the purpose of laying down his case succinctly before the court. It is good because it allows you to put your case before the court and tell your story in court
Questions put to witness by the party that calls him ss214(1) EA.
Purpose – to put before the court clearly story of that party.
To elicit from witness evidence that support his case. Questions to be limited to relevant facts in issue – Sadau v State.
Prosecution and defence can examine in chief
There are rules guiding the examination in chief
Leading questions cannot be asked in examination –in-chief
Leading questions are questions that suggest the answer which examiner wishes to receive – s 221(1) EA
Leading questions are not allowed in examination-in-chief and re-exam – ss221(1)(2) E.A 2011
Exceptions; a- questions relating to undisputed facts, introductory matters, name, etc. – ss 221(3) EA
- May be allowed in cross-examinations. ss221(4) EA
Effective questioning technique
Open Question;
- Allows a witness to tell the story without undue interruptions
- Starts with Describe, How, Where, What, When etc. Good for exam-in-chief
Closed Question; Are, Do, Did, Were you etc.
- Allows succinct, direct answers only
- It puts witness on check
Cross-examination
These are questions put to the witness from the other party after exam-in-chief , ss.214(2),215(1) EA2011. Questions must always have a purpose – just because they can cross-examine doesn’t mean they have to. To test the veracity, credibility and accuracy of witness testimony. Ss223EA, Onuoha v state ,Okoro v state, Akinfe v State. The purpose is to weaken and demolish opponent’s case and strengthen his own case. Leading questions are allowed in cross-examination.
It is the right of the accused under the constitution to cross-examine witness brought by the prosecution – ss 36(6)(d) 1999 constitution
Where there are more than one accused persons and they are represented by different counsels, the rule is that each counsel to the accused person will cross-examine prosecution witnesses, before re-exam by prosecution – ss216 EA. If its just one counsel, then the counsel will do it
Each such defendant may cross-examine witness called by another defendant before cross-examination by prosecution –s217 EA
If you fail to cross-examine, the court may take whatever is said before as the truth.
Questions need not be confined to facts raised in exam-in-chief. Ss.215(2) EA 2011
Questions may be relevant or irrelevant if they serve the purpose. Ss. 223,224 EA
Leading questions are allowed in cross-exam Ss.221(4) E.A
Objectionable Questions –
This refers to objectionable questions in examination in witnesses particularly in cross-examination
Following questions are not allowed in cross-exam. Without reasonable grounds; 225E.A
- Indecent or scandalous questions. S227 EA
- Questions intended to insult or annoy 228 EA
- Or questions needlessly offensive s228 EA
- Questions that affect credit of the witness by injuring his character. Ss 224(1) E.A
Re-examination
Re-examination comes up after cross-examination by a party that calls the witness- Ss.214(3) EA.
Purpose – to clear ambiguities or inconsistencies that arose form cross-examination – Ss.215 (3) EA
Not an opportunity to examine-in-chief again. Leading questions not allowed Ss. 221(2) E.A
Refreshing memory
A witness may need to refresh his memory when testifying Ss.239(1) EA
May do this by referring to a document he or someone else made relating to the transaction Ss.239(1)(2)EA
Expert witness may do so by referring to professional treatises Ss.239(3)EA
Other party to be shown such documents as he may cross-examine on it.
A distinction can be drawn between ordinary witnesses and expert witnesses. Where a witness statement as been made and documents have been frontloaded as in civil litigation it is improbable to have refreshing memory.
Hostile Witnesses
Who is a hostile witness?
is a witness who turns adverse to party that called him and is unwilling to tell the truth. Party shall upon leave by court declare witness hostile. Ss 230 EA, Esan v State, Shofolahan v State.
Party is then permitted to cross-examine his own witness and ask leading questions to discredit him.
Power of court to put questions
Court has power to put questions to witnesses at any time in the trial .Ss 246(1) EA 2011
May order production of documents or things through the witness 246 EA
Must be for clearing ambiguities or clarifying points raised in evidence
Court also has power to call or recall any witnesses at any time during trial. Ss.200 CPL, 237 CPC,197 ACJL,256 ACJA
This power is just for determination of the case. Ss.197 ACJL, 200 CPA,237 CPC.
Its not an opportunity to take over the case of the parties or strengthen the case of either party. See Onuoha v state (supra) Akinfe v State 1988 3 NWLR (pt.85) 729
Parties can not object to such questions but can cross-examine with leave of court 246 (1) EA.
Court shall not ask question that is intended to injure the character of the witness only, or considered irrelevant under the Act Ss.246(2)(3) E.A
Witness can not be compelled to answer questions.
Admissibility of documentary evidence
They are referred to as exhibits in the course of trial
Document must be relevant to be admissible
Confessional statement, expert evidence and police report must follow laid down rules to be admissible in criminal trials.
Confessional statement is an admission by the accused that he committed the alleged offence s.28 E.A
Confessional statement must be voluntarily made to be admissible s.29 EA
Confessional statements are tendered through the IPO with proper foundation laid by prosecution
Where obtained by oppression, torture, inhuman and degrading treatment including threat it would be inadmissible Ss.29(2) (3) E.A, 9(3) ACJL (2011).
Confessional statement is the best evidence if it relevant and voluntarily made.
Confessional statements must be tendered in whole and not in part, including part favourable to the accused. See R v Itule [1961] 1 All NLR 462
It must be direct, unequivocal and point irresistibly to the accused as the perpetrator and no other. See Yesufu v The State [1976], Gabriel v State (2010) 6 NWLR
Expert Evidence
Who is an expert?
Generally opinion evidence is inadmissible s.67 EA 2011
Expert opinion is an exception and is therefore admissible in evidence once relevant. s68 EA
To present expert witness proper foundation as to qualifications and experience must be laid see Azu v The State [1933] NWLR (pt.299) 303 at 311
The court has power to determine whether a person before it is indeed an expert or not. Note that an expert witness may put in report or document in evidence without being called ss. 83(2)(a) EA
Upon application by other party he may be summoned by court to be cross-examined Ss. 250(1)(2) CPC
The presence of the expert may be dispensed with in court, he may just write his opinion in writing. It is not on oath.
Police Report
What is a police report? (Case diary)
Is it admissible in evidence?
The court can only call for it for inspection of the content. They cant mark it as exhibit.
The police may also be allowed to use it to refresh his memory. See S.122(1), 144 CPC; Gaji v The state [1975] 5 SC 60
Hearsay Evidence
What is hearsay evidence? It refers to statements of facts oral or written by a personother than the maker S37 EA, Ijiofor v The State [2001] 4 SC; Okoro v The State [1998].
Generally hearsay evidence is not admissible in evidence; direct evidence is preferable s.38 EA
There are exceptions to this general rule Ss.39, 40,41,42,43 EA
Exceptions
- Evidence if a witness in former proceedings s.46 EA note the proviso
- Confessions – ss28 -32 EA
- Opinion of experts expressed in a treatise – ss 68-71 EA
Ethical Issues
Duty of prosecuting counsel;
To be fair candid and impartial. Rule 32 RPC
Not to seek for conviction at all cost, Enahoro v state rule 37(4) RPC
Not to withhold any material evidence favourable to the accused person, see Rules 32, 37 (4)(5)(6) RPC
He must not ask scandalous questions just to annoy the witness Ss 227,228 EA
This topic forms part of a compulsory question in exam. Both in criminal and civil.
Know the use of open questions, close questions, expert witness, refreshing memory, cross-examinations, re-examinations, questions that must not be asked in cross-examination
There is nothing like witness statement of oath in criminal matters.