evaluating evidence
Post on 19-Dec-2015
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Theory of the Case
“A logical persuasive story of “what really happened”
Mauet & McCrimmon, 2nd Edn
The most plausible explanation when youTake all of the undisputed evidenceTake all of the disputed evidence that is accepted
at the trial after comparing each party’s evidence
Theory - Sources
Charges Show Cause Letter Show Cause Reply Prosecution and Accused Employee’s Documents Photographs Interview Statements (if presented as evidence) The chronology The applicable law
Theory of the caseThe Steps Review the elements (In Charges) Decide whether each element is proved through
available witnesses and exhibits Determine what facts are in dispute (see Show Cause
Letter, Show Cause Reply and DI Notice) What contradictory facts are available to the other side Assess the each party’s witnesses and exhibits that it will
present Identify the strengths and weaknesses of each party’s
case
Theory - Structure
Identify the main issues What stand or position is taken by each
side on the main issues? What are each side’s best points in support
of the stance it has taken on the main issue Identify the opposing theory (or argument)
of each side
Theory - Conclusion
THEN:
Determine which side has a logical and persuasive story of “what really happened”
The conclusion becomes the basis for you’re the decision / report
Examination in Chief
PurposeGet an account of the witnesses’ story In a clear and logical progression
Examiner’s aimFacilitate the unfolding of the story for the
court
Evidence of witness
Elements of the side’s case Which facts regarding which element does this
witness have knowledge of? Witness Chronology Identify the topics for each witness Exhibits Consider organisational charts or other visual
aids to examine the the story
Witnesses
Introduction of the witness to the panel (credibility)
What is the witnesses’ connection to the case?
Try to visualise the scene or event
Open questions
Allows the witness to tell their story in a narrative form
Allows the chairman to hear the story without interruption
The focus is on the witness The witness sounds more credible “What happened at the board meeting between
yourself and Mr Tan on the 10th October last year?” (Assuming that the examiner had laid the foundation that a meeting took place)
Closed questions
Questioner has more control Focuses on a single item or subject Limits the scope of the answer
“What time did you leave the board meeting that afternoon?”
“Where did you go immediately after you left that meeting?”
Relevance and leading
Relevance: Questions must bear directly or indirectly on the facts
in issue. The questioner asks himself “How will I use this answer to this question in my submission?”
Leading: “W” questions: Who, what, when, which, where, why How
Cross Examination (1)Aim Control the opponent’s witness Deny them the opportunity of:
1. Volunteering information you don’t want
2. Supplying information that is not sought
3. Repeating their evidence in chief
Cross Examination (2)Objective Obtain facts or concessions that advance
the questioner’s case Obtain facts or concessions that damage
the opponent’s case Damage the credibility of the witness Damage the credit of the witness
Cross Examination (3)Disputed facts Must cross-examine on disputed material facts If not challenged, treated as not disputed Use “put” questions to state conclusions for the
panel’s consideration “I put to you that you injured him” I put to you that you did not get any approval for the
leave”
Cross Examination (4)Contents of questions Essential elements of each sides’ case Facts in issue from Show Cause reply and
Charges What parties have to prove in order to win the
case Points that each party will integrate into and
support the case theory Logical and does not defy common sense
Re examinationAim Reconcile discrepancies between EIC and
CE Clarify uncertainties arising from CE Explain evidence in CE which is damaging
to your case or the witnesses’ credit
Re examinationRules – Cannot Lead new evidence (i.e. questions not
touched on in CE) Ask leading questions
Re examinationTechnique Refer the witness to what he/she said in
CE Invite the witness to clarify / explain the
answer that they gave
Submissions -Objective To persuade the Chairman accept each
party’s case To summarise the facts of the case To link the facts with the relevant law To apply the facts and the law to support
your theory of the case
Submissions –Ingredients Identify the documents, witnesses and
exhibits Summary of the factual context Deal with the undisputed facts Identify the issues to be decided Establish the facts from the conflicting
evidence
Submissions –Ingredients (cont.d) Analyse the evidence of the witnesses – rely on
presumptions and available inferences Deal with the documentary evidence Identify corroborating evidence Relate the applicable law to the facts at hand Draw conclusions from the facts and the law
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