Multiple-Choice Questions Chapter 9
Criminal and Civil Evidence12th ed (2011-2012)
(a) Violet, a rape complainant, is being examined in chief by Colin (counsel for the prosecution) concerning the alleged facts of her alleged rape by Arthur, the accused. Up to this point in her examination in chief, Violet has merely testified that on the evening of the alleged rape she went back to Arthur’s flat and they had a drink in the kitchen. The examination in chief then continues as follows.
Colin"What happened next?”
Violet“I went with him into the bedroom.”
Colin“Is that when he punched you in the face?”
Violet“Yes”
Colin“What did he do after he ripped your blouse off?”
Which one of the following propositions is true?
[a] The question concerning the blouse is a leading question, which counsel for the prosecution should not have asked.
[b] The question concerning the punch is not a leading question.
[c] The question concerning the punch is a leading question but counsel for the prosecution is entitled to ask such questions during examination in chief.
[d] The question concerning the blouse is not a leading question.
The correct answer is [a]. See Textbook 9.1.1.1 and 9.1.1.2. Both the question concerning the punch and the question concerning the blouse are leading questions. In general, leading questions should not be asked during examination in chief, and this is so whether examination in chief is conducted by counsel for the prosecution or by defence counsel.
(b) Wai Tat is a witness in criminal proceedings. He is called by the prosecution but cannot remember the events in relation to which he was called to give evidence, events that took place several months before the trial. In order to refresh his memory, he wishes to refer to a statement that he wrote one week after the relevant events took place.
Which one of the following propositions is true?
[a] Memory refreshing documents may not be used by witnesses in criminal proceedings.
[b] A document written one week after the relevant events took place cannot be used as a memory refreshing document in criminal proceedings.
[c] A witness cannot refer to a memory refreshing document in the witness box but must always be required to leave the witness box whilst he reads it.
[d] A memory refreshing document may be admissible in criminal proceedings as evidence of a matter stated.
The correct answer is [d]. See textbook 9.1.2.2.2 and 9.1.2.2.3. Memory refreshing documents may be used in criminal proceedings. The one week time gap does not prevent the use of the document for memory refreshing purposes provided that, in accordance with s.139(1) of the CJA 2003 the witness states whilst giving evidence that the document records his recollection of the relevant matter at the time when he made or verified it and that his recollection of the relevant matter is likely to have been significantly better at the time when he made or verified it than it is by the time when he gives evidence. Witnesses can refer to memory refreshing documents in the witness box. Memory refreshing documents may be admissible in criminal proceedings as evidence of matters stated under s.120(1),(3) of the CJA 2003.
(c) Fred, aged 95, witnesses a robbery and, shortly afterwards, gives the police a description of the robber, which is written down by a police officer and read through and signed by Fred. Fred attends an identification parade and identifies Joe as the robber. Fred is called as a witness at Joe’s trial but, due to mental health problems caused by his advanced age, Fred cannot remember the robbery, cannot remember identifying anyone and cannot remember giving the police a statement and, thus, is not prepared to testify that the document records his recollection of the relevant matters at the time when he verified it.
Which one of the following propositions is true?
[a] Fred should be permitted to memory refresh.
[b] Fred should be permitted to memory refresh and the memory refreshing document will be admissible as evidence of the matters stated because it was made whilst the facts were fresh in Fred’s memory.
[c] The document may be admissible because it was made whilst the facts were fresh in Fred’s memory but he does not remember them well enough to give oral evidence of them and cannot reasonably be expected to do so.
[d] None of the above propositions are true.
The correct answer is [c]. See textbook 9.1.2.2.2 and 9.1.2.3. Under CJA 2003 s 139, Fred cannot memory refresh because he is not prepared to testify that the document records his recollection of the relevant matters at the time when he made it. The document cannot, even potentially, be admissible under the hearsay exception concerning the admissibility of memory refreshing documents as evidence of matters stated therein (CJA 2003 s 120(3), because that exception only applies where the document is used for memory refreshing and is admitted in evidence following cross-examination of the witness upon it. It appears, however, that the hearsay exception created by CJA 2003 s 120(6) is potentially applicable, because the document was made whilst the facts were fresh in Fred’s memory but he does not remember them well enough to give oral evidence of them and cannot reasonably be expected to do so. This, of course, assumes that, when determining what it is reasonable to expect the witness to remember, the court is entitled to take the personal characteristics of the witness (e.g. his mental health) into account.
(d) Dennis is charged with the rape of Sei Men. When Dennis is questioned by the police, Dennis refuses to answer any questions. In court, Dennis raises the defence of consent, claiming that it was Sei Men, and not Dennis, whowas eager to have intercourse. Counsel for the prosecution suggests that Dennis fabricated his defence after he was interviewed by the police. Dennis wishes to call Walter, who will testify that on the day after the alleged rape was allegedly committed (which was several days before Dennis was arrested), Dennis had told him that he had had intercourse with Sei Wen and that he hadn’t been keen, but that Sei Wen had insisted.
[a] Walter’s evidence is inadmissible due to the operation of the rule against previous consistent statements.
[b] Walters evidence is inadmissible due to the operation of the hearsay rule.
[c] Walter’s evidence appears to be admissible as evidence rebutting a suggestion that Dennis’ oral evidence was fabricated.
[d] None of the above propositions is true.
The correct answer is [c]. See textbook 9.1.3.1.1. Even though it is a previous consistent statement, the evidence of Walter would appear to be admissible in rebuttal of the suggestion of recent fabrication (i.e. as evidence of Dennis’ credibility). Due to the operation of s.120(1),(2) of the CJA 2003, the statement also appears to be admissible as evidence of the matters stated.
(e) Which one of the following propositions is true?
Where an identification witness gives evidence in court, identifying the accused as the offender:
[a] Evidence of a previous identification of the accused made by the witness at the police station cannot be admissible, because it is a previous consistent statement.
[b] Evidence of a previous identification of the accused made by the witness at the police station cannot be admissible, because it is a hearsay statement.
[c] Evidence of a previous identification of the accused made by the witness at the police station may be admissible.
[d] None of the above propositions are true.
The correct answer is [c]. See textbook 9.1.3.1.2. The statement will be admissible, under s.120(1),(4)-(5) of the CJA 2003, as evidence of the matters stated, provided that the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth .
(f) Horace is charged with the rape of June, his secretary. When June testifies for the prosecution, June gives evidence of the alleged facts of the rape with which Horace is charged and also testifies that shortly after the alleged rape she made a complaint to Violet, her sister, and that the complaint stated the truth. After June testifies, Violet testifies that June made a complaint to her against Horace on the day after the alleged rape was allegedly committed.
Which one of the following propositions is true?
[a] Evidence of the complaint should not have been admitted because it was a hearsay statement.
[b]. Evidence of the complaint should not have been admitted because it was a previous consistent statement.
[c] It appears that evidence of the complaint was properly admitted as evidence of the matters stated.
[d] It appears that evidence of the complaint was properly admitted, but the jury should have been directed to the effect that it was only admitted as evidence of June’s consistency and that it was not evidence of the matters stated.
The correct answer is [c]. See textbook 9.1.3.1.3. Evidence of such a complaint is admissible as evidence of the matters stated under CJA 2003 s.120.
(g) Saul is arrested and questioned by the police concerning the rape of Freda. Saul denies the allegation and claims that he has never met Freda. At Saul’s trial, the prosecution adduce evidence of Saul’s police interview as evidence of his attitude at the time when he made it.
Which one of the following four propositions is true?
[a] The trial judge should not have admitted the statement because it is wholly exculpatory.
[b] The trial judge should not have admitted the statement because it was made by the accused.
[c] The statement was properly admitted as evidence of the accused’s attitude at the time when he made it.
[d] The judge should have directed the jury that the statement was admitted as evidence of the matters stated.
The correct answer is [c]. See textbook 9.1.3.1.4. The statement was properly admitted as evidence of the accused’s attitude at the time when he made it (under an exception to the rule against previous consistent statements) but was not evidence of the matters stated (in consequence of the operation of the hearsay rule).
(h) Consider the following two propositions.
(i) A previous consistent statement may be admissible in civil proceedings in order to rebut a suggestion of recent fabrication.
(ii) A previous consistent statement may be admissible in civil proceedings with the leave of the court.
Which of the above two propositions are true?
[a] They are both true.[b] (i) only. [c] (ii) only.[d] They are both false.
The correct answer is [a] See textbook 9.1.3.2. (see s.6(2) of the CEA 1995).
(i) Dan is charged with the murder of Olive; the prosecution alleging that Dan stabbed Olive in a car park in Newtown.
The prosecution call Walter, an elderly man, to testify, in line with his police statement, that he saw Dan in the car park on the night of the murder. The prosecution also call Sue, Dan’s girlfriend, to testify, in line with her police statement, that when Dan left her flat on the evening of the murder he was carrying a knife. Unfortunately, Walter is very old and forgetful when counsel for the prosecution conducts Walter’s examination in chief, Walter can no longer remember that he saw Dan in the car park on the night of the murder. Moreover, when counsel for the prosecution conducts the examination in chief of Sue, Sue asserts that Dan was not carrying a knife on the evening of the murder, and refuses to memory refresh. Walter and Sue both have previous convictions for theft. The judge gives the prosecution leave to treat Sue as a hostile witness, permits the prosecution to cross-examine Sue in relation to her police statement and permits them to prove her police statement under section 3 of the Criminal Procedure Act 1865. The judge refuses to permit the prosecution to cross-examine Walter or Sue in relation to their previous convictions for theft.
Which one of the following four propositions is true?
[a] The judge should have permitted the prosecution to cross-examine Walter in relation to his previous convictions.
[b] The judge should have permitted the prosecution to cross-examine Sue in relation to her previous convictions.
[c] The judge was not entitled to permit the prosecution to ask Sue leading questions about her police statement.
[d] Sue’s police statement, when proved under section 3 of the 1865 Act, was admissible as evidence of the matters stated.
The correct answer is [d]. See textbook 9.1.4.1, 9.1.4.2 and 9.1.4.2.2.1. S.3 of the CPA 1865 prevents a party from adducing evidence of the bad character of its own witnesses (i.e. the prosecution cannot adduce evidence of the theft convictions of Walter and Sue because the prosecution called these witnesses). [Note: the admissibility of the theft convictions of Sue and Walter for the defence would be governed by s.100 of the Criminal Justice Act 2003, which is considered at textbook 10.2.2, but the bad character provisions of the 2003 Act do not affect the operation of s.3 of the 1865 Act.] Where the judge gives a party leave to treat a witness called by that party as hostile, the judge is entitled to permit a party to cross-examine (i.e., to put leading questions to) the witness and to put the witness’ previous inconsistent statements thereto. Where a witness admits making a previous inconsistent statement or such a statement is proved under the 1865 Act, the statement is admissible as evidence of the matters stated under s.119 of the 2003 Act.
(j) Wayne is called as a witness for the prosecution at the trial of Gill for theft in the Crown Court.
Which one of the following four propositions is NOT true?
[a] In general, Wayne should not be asked leading questions by counsel for the prosecution.
[b] Wayne may be asked leading questions by Gill’s counsel.
[c] If Gill’s counsel intends to adduce evidence for the purpose of proving that Wayne’s evidence is not true, Gill’s counsel should challenge the truthfulness of Wayne’s evidence during cross-examination of Wayne.
[d] When Gill’s counsel cross-examines Wayne Gill’s counsel may require Wayne to repeat a hearsay statement which would have been inadmissible as evidence for the prosecution because the operation of the rule against hearsay does not apply to evidence obtained during cross-examination of a prosecution witness.
The correct answer is [d]. See textbook 9.2.1.6. In general, Wayne (who is called by the prosecution) should not be asked leading questions by the prosecution (examination in chief) but may be asked leading questions by Gill’s counsel (cross-examination). If cross-examining counsel intends to challenge the truthfulness of Wayne’s evidence the matter should be raised during cross-examination of Wayne in order to give Wayne an opportunity to reply. The fact that a question is asked during cross-examination does not, however, make inadmissible evidence admissible.
(k) Which one of the following propositions is true?
In criminal proceedings in the Crown Court, the prosecution:
[a] are entitled as of right to adduce evidence in support of the credibility of their witnesses;
[b] are normally permitted to adduce evidence in support of the credibility of their witnesses regardless of whether the credibility of the relevant witnesses had been impugned by the defence;
[c] are never entitled to cross-examine defence witnesses for the purpose of discrediting them;
[d] none of the above propositions are true.
The correct answer is [d]. See textbook 9.2.2.1 and 9.2.2.2. A party to criminal or civil proceedings may cross-examine witnesses called by other parties for the purpose of discrediting them (subject to the operation of the provisions of Chapter 1 of Part 11 of the CJA 2003, which are considered in textbook Chapter 10), but will not normally be permitted to adduce evidence of the credibility of his own witnesses.
(l) Dipak, a politician, is charged with theft. During cross-examination of Sharon, an alleged eye-witness to the theft, Dipak’s counsel asserts that Sharon is to be paid £100,000 by a national newspaper if Dipak is convicted. Sharon denies this.
Which one of the following four propositions is true?
[a] The defence cannot adduce evidence to prove that Sharon is to be paid £100,000 by a national newspaper if Dipak is convicted because the matter is a collateral matter.
[b] The defence are entitled to adduce evidence to prove that Sharon is to be paid £100,000 by a national newspaper if Dipak is convicted because the matter is not a collateral matter.
[c] The defence are entitled to adduce evidence to prove that Sharon is to be paid £100,000 by a national newspaper if Dipak is convicted because, whilst the matter is a collateral matter, the matter concerns Sharon’s bias or partiality.
[d] None of the above propositions is true.
The correct answer is [c]. See textbook 9.2.3.1.1. The matter is a collateral matter but falls within an exception to the rule of finality because it concerns Sharon’s bias or partiality.
(m) Evidence of spent convictions:
(i) will always be admitted in criminal proceedings;
(ii) will always be admitted in civil proceedings;
(iii) will never be admitted in criminal proceedings;
(iv) will never be admitted in civil proceedings.
Which of the above propositions are true?
[a] (i) and (ii) only.[b] (iii) and (iv) only.[c] (i) and (iv) only.[d] None of the above propositions are true.
The correct answer is [d]. See textbook 9.2.3.1.2.2 and 9.2.3.1.2.3. Evidence of spent convictions may be admissible both in criminal and civil proceedings, but this will not necessarily be the case. For example, the conviction may not be relevant to an issue in the proceedings. Equally, the admissibility of the accused’s previous convictions is governed by special rules. Moreover, section 4(1) and 7(3) of the rehabilitation of Offenders Act 1974 restricts the admissibility of spent convictions in civil proceedings and reference should be made to Paragraph I.6 of The Consolidated Criminal Practice Direction (which can be found at ) for the position in criminal proceedings.
(n) Dan is charged with the murder of Sam. Wally is called as a prosecution witness. Wally testifies that he saw Dan commit the murder from his bedroom window, Dan and Sam being in the street below at the relevant time. During cross-examination Wally, who wears contact lenses, is asked whether he was wearing them at the time of the murder. Wally states that he was not. Wally is asked whether, without his contact lenses, his eyesight was good enough to enable him to see clearly what was going on in the street below. Wally states that he could clearly see what was going on in the street below. The defence wish to call Dr Jones, an eye specialist, who will testify that the state of Wally’s eyes is such that Wally could not possibly have made out the features of a face without his contact lenses at the distance at which the identification was made.