Witness Examination Guide

Witness Examination Guide 2022

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WHAT IS A WITNESS NEGOTIATION?

TABLE OF

CONTENTS

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WHAT HAPPENS IN WITNESS EXAMINATION?

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OBJECTIONS

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PREPERATIONS

Key Dates Fact Scenario Released: Trimester 1 Week 3 Heats: Trimester 1 Week 4 Semis: Trimester 1 Week 5 FINALS: Trimester 1 Week 6

What is the Witness Examination Competition?

Thank you for joining the Witness examination competition!

We have prepared a short guide for you to know what you’re getting into and to help you be prepared for your first heats of the competition.

Participating in a legal competition is always intimidating at first but once you know what you’re doing it becomes really straightforward, so please read through this carefully for key guidance on what the competition is about!

Please feel free to email the Competitions team if you have any other questions after looking over this guide; we will be happy to help!

An overall view of Witness Examinations You will be participating in a simulation of a criminal trial, where your job is to act as counsel for either the Prosecution or Defence in presenting and concluding your case and examining and cross-examining the witnesses present.

Each team will take turns examining witnesses in an attempt to adduce evidence from them in support of their case.

The witnesses will be responding based on the same facts you receive, leaving their answers vague.

You cannot make up facts or make assumptions; your job is to highlight the facts and evidence that support your narrative.

Frame the witness examination in a way that provides an advantage to your client’s version of the events.

Focus on questions that can be answered in support of your narrative while also thinking ahead to questions that the other team may ask and how they can be anticipated to not harm your case.

What occurs in Witness Examination You will be directed by the judge as they take appearances from the Prosecution and Defence and commence trial, followed by: An opening by the Prosecution and Defence Outline and signpost the facts and sequence of events Introduce the narrative you will be arguing Highlight the elements of the crime in contention and those that are not The Defence should focus on the issues within the facts and how they cannot be proved beyond reasonable doubt Examination in Chief by the Prosecution One member of the prosecution team will examine the Prosecution’s witness Discuss with the witness the sequence of the facts and aim to obtain evidence from them that supports the Prosecution’s narrative Leading questions are not allowed, however, think of questions specific to the narrative you are trying to establish, without trying to make up facts Cross examination by the Defence One member of the defence team will cross-examine the Prosecution’s witness Aim to undermine the credibility of the witness Ask questions that may highlight the witness’ inconsistency in the examination in chief Try to ask leading questions to prevent the witness from changing their story and make them flustered as to the evidence they have already given The goal is to get the witness to concede to the narrative you are establishing rather than the other team’s, either expressly or implicitly through their answers.

What occurs in Witness Examination cont.

Examination in Chief by the Defence The other team member of the Defence examines the defence witness Cross Examination by the Prosecution The other team member of the prosecution will cross-examine the Defence’s witness Closing statements by the Prosecution and Defence Summarise and bring together the evidence gathered in the examinations of the witnesses Highlight the evidence supporting your case, while rebutting evidence the other team has against your case The Prosecution should give a final summary of the events, referencing the issue the Defence has focused on The Defence should highlight the standard of proof and inconsistencies with the Prosecution’s witness and narrative

Objections Throughout the examination of witnesses, the opposing team may object to the line of questioning.

There are generally five grounds of objections: Relevance Opposing counsel argues the evidence attempting to be adduced has no relevance to the determination of the crime The judge will determine the relevance of the line of questioning

Objections cont.

Hear say Hearsay evidence is being adduced; the examination is encouraging evidence of a previous representation made outside of court For example, outside of court, another person told the witness that a certain fact occurred. This is not admissible.

Opinion Witnesses cannot draw inferences from the facts provided, they must only provide their direct observations.

The opposing counsel may object where the witness provides their opinion on the facts, rather than simply saying what happened.

Prejudice Opposing counsel may object to evidence that will have a detrimental effect on the perception of the accused.

The probative value of the evidence should be considered; does it outweigh its prejudice?

Leading Questions Examinations in Chief cannot have leading questions Questions cannot ‘lead’ the witness to an answer, or suggest

Preparation

Do some research on the elements of the crime in the fact scenario to ensure you are either meeting the standard of proof (if you are the prosecution) or know how to rebut contentious elements (if you are the defence) in your examination!Know and rehearse what you are going to say in your opening and closing statements; they can be essential to signposting and making your arguments clear.

Discuss and plan with your teammate which questions you plan to ask the witnesses and what line of questioning the opposing team is likely to pursue.

Make sure you know all the types of objections and plan with your teammate to potentially bring them up, this also shows your confidence in the proceedings and knowledge of the procedure.

It may be a good idea to bring paper to take notes on during the opposing team’s questioning so you and your teammate may add any questions to clarify or bring up in addition to the ones you have planned.

Make sure you rehearse and know your case and what you want to bring up and ask, as well as the potential arguments and questions of the opposing team

Things to consider

The fact scenario may unequally advantage or disadvantage either of the teams; your focus should be on strengthening your questioning despite this. You will not be judged on which team would likely win in court, but rather how you present your case and the strength of your speaking.

Be sure to have the proper court etiquette in addressing the judge and your behaviour in court.Ensure that there is an overarching argument to your questions; focus on the elements of the crime.

Present yourself confidently and make sure your speech is even, wellpaced, don’t forget your potential objections and pay attention to the each examination of the witness. Keep track of your time limit, so that your line of questioning and closing statements have time to be concluded The attire to be worn to the competition is corporate Have fun! it’s the best thing ever to pretend being a hot-shot criminal

If there are any questions in regards to a Deakin law Student Society Competition please reach out to us: director-competitions@deakinlss.org

GOOD LUCK!!!