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22 Jan

CRIMINAL LITIGATION WEEK 15 (TRIAL 3; EXAMINATION OF WITNESSES)

WEEK 15

TRIAL 3 (EXAMINATION OF WITNESSES)

:: Examination of witness means putting questions to witnesses with a view to eliciting relevant information. See generally Section 214 and 215 EA for examination of witnesses.

:: TYPES OF EXAMINATION: NB: refer to the discussion in Professional Ethics on Examination in Chief, Cross-Examination and Re-Examination.

  1. EXAMINATION IN CHIEF: Examination by a party of his own witness to elicit material and favourable evidence. Usually start with introductory questions and then witness identifying and adopting his written statement on oath.
  2. CROSS EXAMINATION: inconsistencies in witness’s statement (excluding accused’s statement himself) may render unreliability.

– RE-EXAMINATION:

  1. WHAT QUESTIONS ARE NOT ALLOWED IN EXAMINATION IN CHIEF
  2. ADMISSIBILITY OF DOCUMENTARY EVIDENCE SUCH AS CONFESSIONAL STATEMENTS, EXPERT EVIDENCE, POLICE REPORT ETC.

Wide definition of document in Section 258 EA.

The general rule is that documents should be proved by primary evidence-Section 88 EA. Although secondary evidence may be given in Section 89 EA instances[1] after laying proper foundation and statutory explanation for why the secondary evidence should be admitted instead of the primary evidence.

For public[2] documents, a Certified True Copy is needed-Anatogu v Iweka II, Fawehinmi v IGP, Awoniyi v Registered Trustees of AMORC.

From Section 83 EA; Generally, it is the maker[3] (i.e. the confessor, expert, police, etc. in question.) of the document/statement that should tender it before the court. Except; the maker is dead or unfit to come (maybe body or mental condition) or cannot be found and other instances where his attendance cannot be reasonably secured or if court is satisfied that requiring the maker to tender the document would cause undue delay or expense-Section 83.

Once tendered, court can “admit” or “reject”[4].

FOR CONFESSIONAL STATEMENTS: definition is in Section 28 EA. Confession is the voluntary (S 29 EA), direct and unequivocal admission of the offender/suspect to committing the crime-Nwachukwu v The State. Though this does not ipso facto relieve the prosecution, it can ground conviction-Usman v The State, 29(2) EA. It is admissible in Section 29 EA.

Where accused denies making the statement, court would admit it but decide the weight to attach to it-Ike v State. Nwachukwu v The State. But if he says he did not voluntarily make it, (immediately statement is sought to be tendered[5]) court would conduct a trial within trial to determine such allegation. If truly involuntary, the confessional statement would be rejected otherwise, it would be admitted and accused may be convicted solely on his confessional statement-Nwachukwu v State.

FOR EXPERT EVIDENCE: definition as a person specially skilled in an area. He can give evidence which the court may rely on or reject. Expert evidence is required to prove some offences-Ishola v State.

:: REFRESHING MEMORY: The expert is allowed to refresh his memory by Section 239 and need not show the adverse party the writing used to refresh.

:FOR POLICE REPORT:

:: ADMISSIBILITY OF HEARSAY EVIDENCE: Evidence of a person other than the maker is regarded as hearsay and is generally inadmissible (Teper v R, Okoro v State[6])-38 EA. except (39) it is affidavit evidence (115), testimony regarding history, dying declaration, res gestae (Akpan v State), Treatises, Reports of Police Investigators, Testimony in previous proceedings, where it is impracticable for maker to testify, admissions (Section 20-27?), confession (28-32), statements against proprietary/pecuniary interest, statements relating to existence of relationship by blood or marriage, adoption, contents of lost will, etc, all Section 40-50 EA, where it is made to show that the statement was made rather than to prove facts asserted.

POWERS OF A JUDGE OR MAGISTRATE (OR PRESIDING OFFICER) TO PUT QUESTIONS TO WITNESSES: Judge can ask questions (whether relevant or not) and can also require the production of relevant documents or call or recall persons/witnesses-Section 200 CPA provided all is done for the just determination of the case.

Judge should not take over the conduct of the case or descend into the arena as we operate an accusatorial (rather than inquisitorial) system of Criminal Justice-Okoduwa v The State, Section 200 CPL, Akinfe v The State.

 

 

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[1] That the original is in possession of the adverse party (or a person legally bound to produce it) who has not produced after due notice has been given to him. – The existence of the document has been admitted in writing by the adverse party or his representative. – The document has been destroyed or lost (lost and all search for it has proved futile). – Original is not easily moveable. – The original is a public document (in which case the CTC can be tendered). – Bulky document which cannot be conveniently examined in court. – If document is an entry in a banker’s book.

[2] Public documents evince official acts of sovereign authorities/government, their bodies or arms.

[3] Who had personal knowledge of the content or received the information in the course of his official duty to receive such information from someone with personal knowledge. Provided that documents made in contemplation of proceeding shall not be admitted.

[4] Marked admitted or rejected

[5] Failing which it may be admitted and weight to be attached determined.

[6] Because of tis unreliablility, depreciation of truth, etc.

Isochukwu

Quite eccentric really

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