EXAMINATION OF WITNESSES

CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Examinations
• Hostile Witness
• Cross Examination
• Re- Examination

4.0       Conclusion

5.0       Summary

6.0       Tutor-marked assignment

7.0       References/Further Reading

INTRODUCTION

The provisions concerning the examination of witnesses can be found in Part XII of the Evidence Act. The Act as well as the law and practice in operation for the time being combine to regulate the order in which witnesses are produced and examined in a judicial proceeding. In this unit, you shall learn the order in which a witness is examined in the course of trial and the rules guiding the conduct of the different examinations.

Objectives:

When you have studied this unit, you should be able to

• Differentiate between Examination –in-chief, Cross-Examination and Re-Examination.
• Narrate the order of examinations
• Formulate what questions may be asked
• Distinguish what questions may not be asked?
• Give examples of circumstances when a party may discredit its own witness

MAIN CONTENT

EXAMINATIONS

You are now about to learn the questioning of a witness under oaths or affirmation, the order in which witnesses are called and examined the rules

Procedure

To commence a criminal proceeding, a charge or information must have been filed and a copy served on the accused. At the trial date, the court is set, the accused is called into the dock; he is asked if he understands English language or language of the court and of the charge. If not, an interpreter is provided. The charge or information is read aloud to the accused and explained.

When the accused admits that he has understood the charge, he elects trial, (in appropriate case) and pleads, where he or she submits to court’s jurisdiction, guilty or not guilty. He may keep mute to malice, and the court enters a plea of not guilty.

Examination in Chief:

The court is cleared out of sight and hearing of all the witnesses in the case-S212. The Prosecution opens his case; he may or may not make any opening address. He calls his first witness. The initial examination of a witness by the party who calls him is called “Examination – in – chief”. Evidence Act 2011, Section 214.

The witness takes the oath by the Holy Bible, The Qur’an, or Iron or affirms as the case may be Ss 205-208 The Prosecutor examines the witness in chief, eliciting from the witness all such facts as tend to prove his case and which are within the personal knowledge of the witness; he guides the witness against irrelevancies or facts which are inadmissible.

Leading Questions

Leading questions are questions which suggest their own answers or assume the existence  of disputed facts which have not yet been proved in evidence. They are not generally allowed in examination-in-chief. (Section 221, Evidence Act) Thus you do not ask:

• Was the Accused at Ibadan on the day in question?
• Was the Accused driving on the right side of the road?

Rather, you ask: By which side of the road was the accused driving?

• You may ask where was the Accused on the day in question?.

Questions which require answers “Yes” or “No” are most likely to be leading question.

This is not to say that every leading question is bad. A Leading question may be permissible if:

• It relates merely to introductory matters or identification
• It is a fact which is not in dispute
• It is a fact/ which in the court’s opinion, had already been proved or put in evidence by the other.
• It is necessary,
• If the witness is forgetful or hostile, the court may allow him to refresh his memory of the subject matter on which he is about to testify or give evidence by allowing him to look at a document made by the witness himself or by someone to the knowledge of the witness and while the matters recorded were fresh in the recollection of the witness (say within the week/ or two of the events).
• It is necessary to lead the mind of the witness to the subject matter on which he is called to give evidence. See section 220 (3)

Object of Examination- in-Chief

The object of Examination –in-chief is to adduce all the material facts as far as the witness can remember and in his own words to establish the party’s case – not necessarily all that the witness knows.

Self-Assessment Exercise

What is a leading question? When is it permissible in a judicial proceeding, if at all?

  A Hostile Witness

A party who calls a witness holds out that the witness he calls or intends to call is a person to be believed on oath or affirmation. It is thus contradictory in terms to adduce evidence to impeach or discredit a party’s own witness, and hence give evidence of bad character. See Evidence Act section 230.

A situation may however arise, where the witness has been bought over or afflicted with malice or annoyance and in the judge‘s opinion shows animus against the party that called him. Accordingly, he may be induced to withhold facts, which are favourable to his party, give contradictory evidence of the party or show a reluctance to tell the truth. One who  does this becomes a “hostile witness” If this behaviour becomes apparent, the party that called him may ask for and the judge may grant leave to treat him as a hostile witness. The judge will refuse leave to treat the witness as hostile unless he is convinced that the witness is biased or poised to damage the party who called him or her. The party producing the witness may thereby be entitled to discredit or contradict the witness. To this end, the witness may be asked if he has made any statement at other times - a statement inconsistent with his present testimony. Before doing so, the party would have established the circumstances or occasion when the statement was made.

The witness must be asked whether or not he made such statement and if he denies, it may be proved that he did. The hostile witness may also be cross examined as to his previous statement in writing or give a contradictory proof. The judge may request the production of the statement for his inspection and use as he may think fit.

The evidence so adduced is not a proof of the facts contained in it. Its purpose is merely to discount the hostile witness.

Self Assessment Exercise

1. What do you understand by the term ‘hostile witness?
2. State the rules governing the examination of such witness
3. Distinguish between a “hostile witness” from the witness, who is merely “unfavorable”.

Cross Examination- Sections 216, 217, 219, 232, etc

On completion of the examination – in – chief, the witness is cross-examined by the other side. The examination of a witness, by a party other than the party who calls him is called: ‘cross-examination’. The objectives of cross examinations are:

• To test the accuracy of the evidence-in-chief.
• To weaken or destroy examination-in-chief, if possible
• To obtain evidence that will assist the party’s own case by the testimony of the opponent’s witness
• To show that the witness is unreliable and for that purpose may attack his testimony or credibility.
• To obtain necessary facts that may be favourable to a party’s case or to weaken or dilute the strength of evidence –in-chief.

The scope of cross-examination is wider than that of examination-in- chief. Cross examination is not limited to questions raised in examination-in-chief; leading questions are allowed as are questions designed to discredit the character of the witness. One may be cross examined as to previous statement one has made relative to the subject matter

Who may be cross examined? By whom?

The witness who may be examined includes

 

• The witness who has been examined-in-chief
• A sworn witness, whether or not examined in chief
• Witness as to character
• Witness called by co-accused
• The accused where he testifies

Some witnesses may or may not be cross examined. Examples are witnesses who are:

• called by a genuine mistake
• unable to give any evidence material to the case

The normal procedure is for the adverse party to cross-examine the witness called by the other party. Where there is more than one plaintiff, defendant or accused, each must be given opportunity to cross examine.

Each of the accused persons is allowed to cross-examine any witness called by co-accused. Where an accused gives evidence in chief, every co-accused has right to cross-examine him.

The witness under cross examination may be asked question to:

• Test his accuracy or veracity
• Discount his identify and position in life
• Test his qualification or any special ability which he claims in the case of witness
• Injure his credit as a truthful witness

Where a question during cross examination is directed at a witness’s credit; whatever answer the witness gives is final. No evidence in rebuttal is admissible. These are the following exceptions to this general rule, when rebuttable evidence may be allowed.

• Where a witness denies bias or partiality
• If the witness denies a previous inconsistent statement
• If the witness denies a previous conviction
• If the witness denies that he is a notorious liar or has such a generally bad reputation for veracity that he is not to be believed on oath
• ACTIVITY

React to the Prosecution’s proposal to call Adams to testify as to the charge before the court and the Accused’s objection and intention to call witnesses to prove that Adam’s statement on Oath is not to be believed.

In introducing Adams as a witness the prosecution represents to the Court that Adams is a witness to be believed on oaths or affirmation. According to Lord Goddard, CJ,:

“(The fact) that witnesses can be called to say that they would not believe a particular witness called by the other side, whether for the persecution in a criminal case or for a party in a court case, is in the opinion of the court, undoubted. “

That credit of the witness may be impeached by the opposite side, by the evidence of persons who swear that they, from that knowledge of the witness, believe him to be unworthy of credit upon his or her oath.

Such persons may not upon their examination –in-chief give reason for their belief but they may be asked that reason in cross examination and their answers cannot be contradicted”

Limitation on the scope of Cross-Examination

Cross examination is not a channel for:

• Questions which are intended to insult or annoy either the witness or any other person
• Questions put forward only to impugn the witness’s character
• Affirmative evidence to contradict answers given in cross examination to questions directed only to credit
• Questions which affect the credibility of a witness by attacking his character, but which are not otherwise relevant to the actual inquiry unless the imputation conveyed by the question is well founded or true
• Questions relating to matters so remote in time or of such a character that they would not materially affect the credibility of the witness

Re- Examination

When the cross examination is completed, the party who called the witness has the right to re-examine him. Where a witness has been cross-examined and is then examined by the party who called him, such examination is called ‘re-examination’: Evidence Act, Section 214 (3).

A re-examination follows a cross-examination. The latter follows the examination–in- chief. Re-examination is the right of the party that called the witness and it exists once there has been cross examination.

A re-examination is confined only to matters arising in cross-examination. New evidence may not be introduced without the leave of court. Leading questions are not also allowed.

The object of re-examination is to repair, as much as practicable, the damage done during cross examination and to clear up any misunderstandings of ambiguities that may have arisen during cross examination.

CONCLUSION

Part XII of the Evidence Act makes provision for examination of witness. There are three types of examination: Examination–in-chief, cross – examination and re-examination. You should remember the order in which they are called, their objectives and limitations.

SUMMARY

In this unit, you learnt about examination of witnesses in proceedings, who a hostile witness is and the process of treating him as such. Certain questions may not be asked during examination in chief and if asked, need not be answered. No such restriction applies in cross examination. A re-examination is confined to issues arising from the cross-examination that precedes it. If new matters are introduced, the leave of court must first be obtained and the other party must be granted opportunity to cross examine on it.

TUTOR MARKED ASSIGNMENT

In certain circumstances, the answer which a witness gives during cross examination must be regarded as final. What are these circumstances?

REFERENCES/FURTHER READING

FGN Evidence Act, 2011

Nwadialo, F (1999) Modern Nigeria Law of Evidence, University of Lagos Press Aguda T (2007) The Law of Evidence, Spectrum Law Series, Ibadan

Afe, B (2001) Law and Practice of Evidence in Nigeria, Intect Printers, Ibadan