Pasos para la Formalización

c) to shake his credit, although the answer to such question might tend directly or indirectly to expose him to penal proceedings or to civil action for damages.

2. If any such question as asked in accordance with the preceding paragraph relates to a matter relevant to the proceedings, or if the Court orders the witness to answer in accordance with the provisions of the following paragraph, the provisions of Article 200 shall apply.

3. If any such question relates to a matter not relevant to the proceedings and tends only to affect the credit of the witness, the Court shall decide whether or not the witness shall be compelled to answer it. In exercising its discretion, the Court shall have regard to the following considerations:

a) such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;

b) such questions are improper if;

i. the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the creditability of the witness on the matter to which he testifies.

ii. there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.

The Court may, if it deems fit, warn the witness that he is not obliged to answer a question.

4. No such question as is referred to in the preceding paragraph ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which is conveyed is well-founded.

5. A Court;

a) may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

b) shall forbid any questions or inquiries which appear to it to be intended solely to insult or to annoy or which, though proper in themselves, appear to the Court needlessly offensive in form.

The opportunity to cross-examine the prosecution witnesses allows the defense advocate an opportunity to challenge their version of events. This is a chance to emphasize any contradictions that emerge in the account given as evidence, and to undermine the credibility of the witness. The opportunity for the prosecutor to cross-examine defense witnesses likewise challenges, and potentially undermines, the defense case.

p. 51 II. Procedural Section

4.9.14 Re-Examination

Following cross-examination of the prosecution witnesses by defense counsel, the prosecutor has an opportunity to clarify points that may have arisen during that cross-examination. As with examination-in- chief, leading questions are prohibited, unless expressly permitted by the court.33

4.9.15 Judicial Assessment of Sufficiency of Evidence

At the conclusion of the prosecution evidence the court will consider, without requiring the defense to call any evidence as yet, whether the prosecution evidence has been sufficient to establish a case for the accused to answer. Article 115 of the CPC provides:

Order that Proceedings be terminated for Lack of Evidence

1. When the case for the prosecution is concluded, the Court, if it considers that the evidence adduced, even if such evidence is uncontested, is insufficient to prove the guilt of the accused, shall, either at the request of the accused or on its own motion and having beforehand asked the Attorney General whether he intends to withdraw the charge in accordance with Article 112;

a) order, giving the reasons therefor, that the proceedings against the accused be terminated with respect to the offence for which guilt has not been proved, and

b) order any measures that may be required by Article 70.

2. An order that proceedings be terminated, given in accordance with this Article, shall be equivalent to a judgment for the purposes of paragraph 3 of Article 13.

The decision that the court will consider at this stage of proceedings is whether the prosecution, on the evidence that has been provided to the court which has been tested by cross-examination, but uncontested by defense evidence being called to rebut it, establishes a prima facie case. If not – the accused has no case to answer.

As stated above, if the court decides that there is insufficient evidence, the proceedings are terminated by order of the court.

If a case has been established by the prosecution evidence, the case can proceeds to the next stage, where the accused may produce evidence as a defense against the allegation.

4.9.16 The Defense Case

Should the court accept that a case has been established against the accused, the next stage of the hearing concerns the opportunity for the accused to contest the allegation by calling evidence. The accused does not have to produce any evidence or make a statement in response to the invitation of the court to do so.