Witness Examination
Overview
Thank you for considering participating in the 2010 MULSS Witness Examination Competition. If you can think (reasonably) fast on your feet, enjoy interrogating your friends and don’t want to be buried under legal research, then this competition is for you!
The Witness Examination competition is a simulated civil or criminal trial. Teams consist of two students, one barrister and one non-competitive witness. As the barrister, you will act as either counsel for the defence or counsel for the prosecution and your task will be to ascertain the facts of the case through the examination and cross-examination of witnesses. As a witness, you must memorize the facts of the case prior to trial and must testify in accordance with the facts. It is permissible to create facts that are not in the brief, but the facts created must always be consistent with the brief.
You are emailed your brief approximately 24 hours prior to the trial. It contains statements from both the Defendant and Witness for the Prosecution, relevant laws and written instructions from your client.
A detailed outline of the process involved in the Witness Examination Competition can be found on the following pages. Note that as a matter of court etiquette, an adjudicator sitting in the Magistrates’ Court should be referred to as “Your Honour” (as are all judges sitting in higher courts).
Should you have any further questions, please feel free to contact Longzhen Han at lss-witness@unimelb.edu.au
Changes to Witness Examination from 2008
As a result of the Evidence Act 2008 (Vic) [AustLII version], some of the common law rules regarding hearsay, opinion evidence and other like rules have been slightly modified. We believe, however, that many of the technical objections unfairly advantage students who have studied Evidence & Proof and/or Advocacy. As such, objections can be raised in order to stop certain questions being asked (which may be advantageous depending on the situation), but the quality/number of objections made will not be directly included in your score.
For administrative purposes, we have decided to combine Senior (LLB) and Junior (JD) Witness Examination competitions.
Another slight rule change worth noting is that a witness is not allowed to read from his or her brief during examination because, in reality, such conduct would generally not be permitted in court. Even though the witness is not being judged, we want the competition to reflect reality and to give barristers the opportunity to exercise their skills without being delayed by witnesses referring to their briefs. The witness must memorize the facts of the case prior to trial and must testify in accordance with the facts (i.e. the witness cannot exercise any right to silence and cannot lie). It is permissible to create facts that are not in the brief, but the facts created must always be consistent with the brief.
Also, to ensure compliance with the Australian Law Students’ Association, we have introduced a slightly modified scoring system.
Rules
Step 1: Appearances (1 min)
The trial begins when the judge commences with the statement ‘I will now take appearances’. At this point, the prosecution/plaintiff’s counsel will rise and address the bench, saying: ‘May it please the court, my name is [x]. I appear on behalf of the Director of Public Prosecutions/plaintiff’. Defence counsel does the same.
Step 2: Opening by prosecution/plaintiff counsel (2 mins)
This is your chance to present your side of the case to the judge. You need to be clear, confident and concise as you only have 2 minutes. You must outline your case theory (i.e. your proposed series of facts) and identify all of the major issues that you wish to cover. You must ensure that your speech is structured logically. You need to make a good first impression to the judge, especially considering the opening address is worth 15% of your marks.
Step 3: Examination-in-Chief (prosecution/plaintiff) (10 mins)
This is your chance to present your side of the case to the judge. Evidence should be elicited from the witness in a chronological and natural manner. Leading questions (e.g. ‘Did you then go to the shop? Did you then buy a gun from the shop?’) are forbidden. Instead, you must ask open-ended questions (e.g. ‘What happened next?’). Good barristers use short, clear questions, engage with the witness’s answers and get the witness to tell the court his or her story in the most effective way possible. This is worth 30% of your marks.
Step 4: Cross-Examination (defendant) (15 mins)
In cross-examination, you attempt to discover and highlight the inconsistencies in a witness’s evidence. Unlike examination-in-chief, you are permitted to use leading questions, including phrases such as ‘I put it to you that you entered the house at 5:15pm’. You will be judged on the clarity and quality of the questions asked, how the examination advances your own case and how effective the questioning was in eliciting the desired responses. This is worth 30% of your marks.
Step 5: Opening by defence counsel (2 mins)
See above, step 2.
Step 6: Examination-in-Chief (defendant) (10 mins)
See above, step 3.
Step 7: Cross-Examination (prosecution/plaintiff) (15 mins)
See above, step 4.
Step 8: Summation by defence counsel (3 mins)
In your closing statement, you must try to bring all the evidence together and prove that the verdict should be in your favour. You should try to rebut the opposing counsel’s allegations and suggest resolutions to conflicting evidence in your favour. Although you are not directly judged on this, it is critical that you put a lot of effort into your summation because a lot of your marks are based on your expression, the organization of your presentation and your engagement with the court.
Step 9: Summation by prosecution counsel (3 mins)
See above, step 8.
Objections
One of the most exciting aspects of Witness Examination is the ability to object. Based on the law of evidence, there are some bases on which you may object. There are many other bases, but below are the ones most likely to be encountered. Note that you will not be directly marked on this because it gives a very unfair advantage to certain students, but they are always a lot of fun, necessary in other competitions run around the country (if you win, you may be selected to represent Melbourne University against other universities) and are a good way of shutting down the other side. Feel free to look at the Evidence Act 2008 (Vic) out of your own interest to look at the different sorts of rules regarding admissibility of evidence. To make an objection, you just have to stand up and say ‘objection, [grounds of objection, e.g. hearsay]’. If the reasoning behind the objection is obvious, the judge is likely to say ‘sustained’ and the barrister must retract her/his question or the witness must retract his/her statement. If it is not so obvious, the judge may briefly stop questioning and ask the barristers to debate the point. If you watch Boston Legal, you’ll understand how this works!
1. Relevance
Relevant evidence is defined as evidence that could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. If the evidence is not relevant, then it is not admissible. This means that if a barrister asks something that would have no impact at all on the assessment of whether or not somebody had committed a crime (e.g. a barrister asking about a witness’ income in a rape trial is probably not going to be relevant in determining whether or not a rape was committed), the opposing barrister may object by standing up and saying ‘objection, relevance’.
2. Hearsay
The essence of hearsay is that you can’t use evidence of representations made out of court to prove those representations were true. For example, if a witness said ‘Bob’s wife told me that she saw John killing Jane’, it is generally inadmissible to use such evidence to prove that John killed Jane (however, the evidence can be used to prove that Bob’s wife said those words). The rationale for this is to ensure all witnesses can be cross-examined as to their veracity in court. There are exceptions, but they are unlikely to be encountered.
3. Opinion
An essential principle of evidence is that witnesses are to testify only as to their direct observations and not to any inference that may be drawn from them. As a general rule, witnesses are not allowed to give opinions about an event, other than lay opinions (e.g. hot weather, angry temperament). For example, a witness cannot say ‘Jane was drunk’. Instead, the witness would have to say ‘I saw Susie drinking five beers, staggering out of the pub and slurring her words’, leaving the inference that Jane was drunk to the court to decide. There is an exception for expert evidence (e.g. doctors, psychologists), but this is not going to be relevant for the competition.
4. Prejudice
If the probative value of the piece of evidence is less than its prejudicial effect, the court should exclude the evidence. For example, if there is evidence to suggest that John was having many affairs before he allegedly killed his wife, the court must consider whether the affairs are relevant and, if so, whether the evidence is too prejudicial to be admitted (i.e. a hypothetical jury may dislike John because he cheated on his wife and rely on this weak evidence to conclude that he murdered his wife).
5. Leading questions
During examination-in-chief, a barrister cannot suggest the answer desired (e.g. ‘Did you run after seeing Jane killing John?’). The rationale for this is to ensure that witnesses are not being led and are giving genuine testimony. It is generally permitted to use leading questions for facts which are not contentious (e.g. ‘is your name John Smith?’), but one ought to object for contentious issues.