Weekly Lecture/Comment: Lecture 2 (Learning

Units 4, 5 and 6)
Please note that this is the start of the learning units that deal with the basic ways
by which evidence is presented in court, namely through oral evidence
(witnesses), real evidence and documentary evidence.

Learning Unit 4
This is an important learning unit and you will get question about it in the exam. Study the
diagrams at the start of the learning unit to properly understand the process that is
followed in criminal and civil trials. You will not, however, be asked to repeat this process
in the exam. Please note again that different evidentiary rules apply depending on
whether a civil or a criminal case is at issue. In the exam you must therefore always
orientate yourself before you answer any question.

The three significant stages in a trial in which oral evidence is presented are examination-
in-chief, cross-examination and re-examination. You should know the following aspects
of each stage and be able to compare them in the exam:

• What is the purpose of the stage?

• Who undertakes the specific stage?
• Are leading questions allowed?
• May the credibility of a witness be attacked during the stage?

Examination-in- Cross-examination Re-examination

chief
Purpose To adduce relevant 1)To elicit evidence To clear-up any
and admissible that supports the misleading
evidence cross-examiner’s impression that may
case have resulted from
2)To cast doubt on cross-examination
the credibility of the
opposing party’s
witness
Party who starts Party calling the Opponent of the Party that originally
witness party calling the called the witness
witness
Leading questions Not admissible, Admissible Not admissible,
unless the question unless the question
deals with deals with
undisputed undisputed
information information
Attack on credibility Not permitted, Permitted Not permitted
of witness unless the witness
is declared a hostile
witness
You should further know that a witness may refresh his or her memory while testifying in
court, but that certain requirements must be met before this can happen (study the
feedback at Activity 4.1).

Also note that there is difference between a hostile witness and an unfavourable witness.
You must be able to explain this difference for at least 5 marks.

There is also a difference between civil and criminal cases as far as witnesses called by
the court is concerned. You must ensure that you understand this difference.

Learning unit 5
This learning unit is not complicated if you remember that there is general rule and
exceptions to this rule. Also remember that certain aspects of this learning unit are also
relevant at the learning units that deal with the admissibility of evidence (see the privilege
that applies to communications made between spouses) and the evaluation of evidence
(see the cautionary rule that applies to the evidence of a child). When you get a question
about this in the exam, make sure you know what part of the work is relevant by carefully
reading the question that is asked. A spouse, for example, may be forced to testify about
what she saw if the relevant exceptions mentioned in the Criminal Procedure Act applies
and because it is a criminal case, but she cannot be forced to testify about any
communication made to her by her spouse (because spousal privilege will apply or
because it is possibly a civil case).

You should further study this learning unit by always focusing on the party on whose
behalf a specific witness is testifying. A spouse can possibly testify on behalf of the
prosecution and on behalf of the defence (note that there is difference here between the
accused spouse and the co-accused of the accused spouse).

Competence
General rule (s 192 of the CPA and s 8 of the CPEA)
Exceptions
Children
Mentally disordered or intoxicated witnesses
Officers of the court

Compellability
General rule (s 192 of the CPA)
(Three main categories: Spouses, the accused and the co-accused)

Spouses
Spouse as a state witness (s 195 of the CPA)
Spouse as a defence witness (s 196 of the CPA) (either for the accused or the co-
accused. Note that a different rule applies)
Accused persons
See s 196(1) of the CPA and s 35(3)(h) and (j) of the Constitution

Co-accused persons
Co-accused as a defence witness
Co-accused as a prosecution witness

It is important that you do the activities and questions for self-evaluation at the end of the
learning unit. The feedback on these should be studied for the exam.

Learning unit 6
In the previous lecture you learned more about the presentation of oral evidence as a
method to present evidence in court. This learning unit deals with another way, namely
the presentation of real evidence. This is an important learning unit since it deals with the
presentation of types of evidence that we hear a lot about in everyday life, namely DNA
evidence, fingerprint evidence, footprint evidence and evidence derived from computers
and other digital devices. You must study the rules relating to the presentation of each
different type of evidence, since they are not the same.

More information about the presentation of evidence derived from computers and other
digital devices will be provided at the discussion of Learning Unit 8). For current purposes
you should understand that it is necessary to make a distinction between machine-based
evidence where a human had also been involved at some stage on the one hand, and
evidence which were created by machines (computers) working without human
interference on the other. Where humans had been involved, this will be documentary
evidence and if they were not involved, real evidence. If required, the latter type of
evidence will be brought before court by an expert testifying about the reliability of the
working of the relevant machine.

Note that real evidence is often presented by an expert witness. When a witness for
example testifies about DNA evidence, his or her evidence about the DNA evidence will
be opinion evidence and certain specific requirements for admissibility will apply (see
Learning Unit 13). The DNA evidence, however, remains real evidence.

It is important that you do the activities and questions for self-evaluation at the end of the
learning unit. The feedback on these should be studied for the exam.