Características de las habilidades sociales.

A special procedure is used when accomplice witnesses testify. Accomplice witnesses are warned by the court that if they testify satisfactorily, the judge will order the prosecutor not to charge them with the crime that they are alleged to have committed. This is called granting the witness “immunity”. The prosecutor must inform the judge that the witness is being offered as an accomplice witness. The judge will then warn the witness. For example:

Judge to witness: “I am informed that you took some part in the offence charged here. If you tell the truth and give satisfactory evidence, I will order that you should not be prosecuted and that the things you say here will not get you into trouble in any way. Are you willing to be sworn in and to testify under these conditions?”

11.5.3 Procedure 3: Dishonest or confused witnesses

In cross-examination, the lawyer may want to prove that the witness should not be believed. This can be done by showing that the witness has said something before that is different from what the witness is now saying. The witness may have said something different when giving evidence earlier or may have made a sworn statement to the police which contradicted the evidence that he or she gave later.

For example, if a State witness gives evidence different from that given in the sworn statement, the prosecutor may hand the sworn statement to the defence and allow the defence lawyer to cross- examine the witnesses on the statement. The following steps should be used:

Step 1: Ask the witnesses if he or she recognises the affidavit.

Step 2: Ask the witnesses to read the section that differs from the present answer. For example:

Defence lawyer: “Now, Naran, you testified in your direct examination that Mandla acted very nervously when you found the boys at the school on the night of 15th August, didn’t you?”

Teacher: “Yes, that is what happened.”

Defence lawyer: “Do you know what this paper is? Please tell the judge what it is.” Teacher: “Yes, that is my sworn statement to the police.”

Defence lawyer: “Will you please read the second-last line of this paragraph?”

Teacher: “I thought that Mandla seemed quite open and natural about having the typewriter.” Defence lawyer: “That is sufficient, thank you.”

11.6 Conducting a mock trial

The following steps should be taken before, and when, conducting a mock trial:

11.6.1 Lay out the court room

It is important for students to be familiar with the physical setting of the court room. The following diagram depicts the layout of a typical court room:

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REGISTRAR

ACCUSED: DOCK ORDERLY

WITNESS

DEFENCE COUNSEL PROSECUTOR

WITNESSES

OBSERVERS/SPECTATORS

Lawyers conduct the trial while standing on their feet at the table for counsel. One lawyer remains seated while the other lawyer conducts his or her case.

11.6.2 Participants take their places

The lawyers, the accused (or parties in a civil case), witnesses, experts, registrar, court orderly, time keeper, and courtroom observers (spectators) take their places. The witnesses may or may not be allowed in court before they have given their evidence.

11.6.3 Orderly calls the court to order

As the judge or magistrate is about to enter the courtroom, the court orderly stands and says in a loud voice, “Silence in court!”.

11.6.4 The registrar or clerk informs the judge or magistrate about the case

“Your Lordship (judge) or Worship (magistrate), I am calling case (give name and number) for hearing.”

11.6.5 The charge is put to the accused

The judge or magistrate asks the accused to stand: “Will the accused please stand?”. The judge or magistrate says to the accused: “Are you (name of the accused)? You are charged with the crime of (mentions the crime and puts the charge to the accused). How do you plead, guilty or not guilty?” The accused replies “guilty” or “not guilty”.

11.6.6 Introduction of counsel

The judge or magistrate asks the counsel to introduce themselves e.g. “Who appears?” The prosecutor replies: “I am X and I appear for the State, My Lord (or Your Worship)”. The defence lawyer replies: “I am Y and I appear for the defence, My Lord (or Your Worship)”.

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11.6.7 Opening statement

The opening statement is the introduction to the case. Usually it is only done by the prosecutor who says what the charges are and what evidence will be led. In mock trials the defence lawyer usually says what the accused's defence is. The prosecutor always begins.

11.6.8 Prosecution case

The process of examining the witnesses begins. First the prosecutor=s team presents its witnesses and evidence, then the defence team presents its witnesses and evidence. If the accused is going to give evidence he or she must be called first when the defence begins its case.

Each time a witness is called to the witness stand, the court orderly asks the witness whether he or she has any objection to taking the oath to tell the truth. If they do not the orderly administers the oath, by raising the right hand, and asking the witness to raise their right hand and asking: “Do you swear that the evidence that you are about to give is the truth, the whole truth and nothing but the truth? If so, raise your right hand and say, ‘So help me God’.” The witness should respond “So help me God”.

If witnesses do not wish to take the oath they may make an affirmation in which case they are asked: “Do you affirm that the evidence that you are about to give is the truth, the whole truth and nothing but the truth?” – without any raising of the hand.

The lawyer who calls the witness asks a series of questions called “direct examination” (or “examination-in-chief”). These questions are designed to get the witnesses to tell their stories, saying what they saw, heard, experienced or knew about the case. The questions must ask only for facts, not for opinions -unless the witness has been declared an “expert” in the area under question or is giving an opinion about things in common experience. During direct examination the lawyer may only ask questions and may not make any statements about the facts, even if the witness says something wrong. Here the lawyer must use open-ended questions (e.g. What? Where? When? Why? Who? How?). 158

When the direct examination is completed, the lawyer for the other side then asks questions to show weaknesses in the witness's evidence through a process called “cross-examination”. The purpose of the cross-examination is to show the judge that witnesses who give unfavourable evidence should not be believed because they: (a) cannot remember facts; (b) did not give all the facts during direct examination; (c) told a different story at some other time; (d) have a special relationship with one of the parties (maybe a relative or a close friend); or (e) bear a grudge against one of the parties. The cross-examination questions are designed to bring out one or more of these factors.159 _{Usually the}

questions are framed as statements with which the witness or the accused is asked to agree or disagree.

Sometimes, witnesses called by one side give evidence that helps the other side. The lawyer for the side getting the unexpected help should remember to use the evidence in the closing argument. After cross-examination, the prosecutor (or plaintiff’s counsel) may “re-examine” the witness about matters that were raised in the cross-examination. During re-examination open-ended questions must be used. No further cross-examination is permitted after the re-examination.

158 See above para 14.3.1. 159 See above para 14.3.1.

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