![]() Prosecutors should ensure that witnesses are aware of the provisions on memory refreshing from a document that they have made or verified at an earlier time in section 139 of the Criminal Justice Act 2003 (CJA 2003). Whether done deliberately or inadvertently, the disclosure of prejudicial information should not be considered to have any implications about the truthfulness of the witness's evidence. If the Judge nonetheless grants the application and discharges the jury, the prosecutor should seek a retrial. Where the prosecutor considers that a fair trial can still take place, they should resist the application. If the prosecutor considers that a fair trial no longer is possible, they should support the application and seek a retrial if the judge discharges the jury. If in such an event the defence applies to discharge the jury, the prosecution advocate must consider the impact the disclosure is likely to have had on the fairness of the trial and respond accordingly. Nonetheless, a witness may deliberately or inadvertently disclose prejudicial or inadmissible material while giving evidence. ![]() The prosecutor should examine the witness in such a way that avoids the need for the witness to refer to any prejudicial material. Awareness of prejudicial material will reduce the chances of the witness inadvertently referring to it or being confused or surprised when the matters are not mentioned in examination-in-chief. The prosecutor should clarify to the in advance if their statement contains information that the witness should not mention when giving evidence and explain that they will not ask questions about this content. Sometimes witness statements may include material which may prejudice a fair trial if a witness makes reference to it when giving evidence. Prejudicial or inadmissible evidence in witness statements This includes encouraging witnesses to refresh their memory from their witness statement. It emphasises the need for advocates to ensure witnesses are properly assisted at court and prepared before giving their evidence. Prosecutors are referred to the Speaking to Witnesses at Court guidance which provides clarity to CPS advocates about how they are expected to support witnesses in giving their best evidence in court. A prosecutor can refuse to provide a witness a copy of their statement if there is reason to believe that the request is made for reasons other than a desire to give honest and accurate evidence. If the statement is particularly long or complex it may be appropriate to provide a copy. In most cases it is sufficient to allow the witness to view their statement. Only in exceptional circumstances should a witness be given a copy of their statement days or weeks before the trial begins. In light of the potential risks outlined above a witness should preferably be given a copy of their statement on the day of trial. The defence may seek to undermine the credibility of a witnessby cross-examining on the basis that one or more of these events (i.e.The statement may be lost or may end up in the wrong hands.A witness may try to "learn" the content of their statement and create a false impression of their truthfulness.A witness who has made a false statement may try to ensure that his or her evidence in court is consistent with the false statement.Advance memory refreshing may affect the weight that can be attached to the witness’ evidence due to the following reasons: It is good practice to inform defence if a witness has seen their statement some time before giving evidence (as opposed to the day of trial). Many courts have approved the practice of allowing witnesses to see their statements prior to trial. Reading statements before trialĪlthough witnesses are not entitled as of right to see a copy of their statement before the day of trial, there is no general rule that prohibits a witness from seeing their statement before trial. Prosecutors and paralegals should therefore ensure that witnesses have been offered an opportunity to view their statement to refresh their memory before giving evidence. ![]() The CPS has a duty to ensure that cases are prosecuted in a way that is fair to all. The CPS is committed to the proper care and treatment of witnesses as set out in the Casework Quality Standards (CQS). ![]() Memory refreshing whilst giving evidence.Prejudicial or inadmissible evidence in witness statements.
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