‘Do you swear to tell the truth and nothing but the truth?’ The Court clerk led the opponent’s witness in a voir dire.
‘Counsel, why does Court have to make us swear those things?’ My client, Nora, complained. ‘I am a traditionalist!’
‘To determine whether or not one can stand trial or testify.’
‘But that woman is already on trial. She is in the dock.’
‘No and yes. She is standing in the dock and no, she is not on trial.’ I almost yelled but remembered I was in Court and the aging Judge luckily didn’t hear me.
‘You confuse me, you, young people.’
‘She is a witness who will be testifying on behalf of the Petitioner. The Respondent is against her testimony since he says she is mentally challenged.’
‘I don’t get it.’ She adjusted her thin spectacles. ‘She looks fine to me.’
‘Yes, but Court must confirm that she is mentally ok before she can go ahead and testify.’
‘Meaning?’ She gaped at her own inquisition.
‘If she is mentally incapable like the Respondent claims, her testimony will be disregarded. If she is ok, she will go ahead and testify, and it will be used later in the main suit.’ I figured I had lost my client a mile ago with my explanations. To her, talk or no talk determined whether one’s account was valid.
‘The old judge said it is some French process, is it?’
‘No. But the words come from those French linguists.’ Afraid of being held in contempt, I shushed her immediately.
Definition of voir dire
The Black’s Law Dictionary, 2nd Edition, defines a voir dire to mean: To speak the truth. This phrase denotes the preliminary examination which the court may make of one presented as a witness or juror, where his competency, interest, etc., is objected to.
A voir dire is a trial within a trial.
Before our system of assessors (read, ‘jury’ for the United States of America) was scrapped, assessors had to first take oath committing to impartially assess the case and advise the court accordingly. Today, few courts employ their services since it is optional.
Brief background of voir dire
In our jurisdiction that follows the Commonwealth system, the judicial procedure is one that deals with the facts at hand and evaluates them according to precedence or law.
It is common to witness a court process beginning with a series of rituals. These rituals include taking an oath to speak the truth about the matter before court. These oaths or rituals of establishing the veracity of certain matters, examining minors, witnesses and their accounts etc. are connected to the main hearing/suit.
‘Trial within a trial’
There are hearings that often require courts to first handle certain aspects which ordinarily can stand on their own but are important in or connected to the main suit.
For example, to determine whether certain evidence is admissible in court, or if a witness can testify or a child can participate in the proceedings etc., court will hear these circumstances as a miniature trial before handling the main suit/hearing itself. This is because the results of the ‘trial within a trial’ will have a big impact on the sustainability of the whole or part of main suit.
Also, to corroborate evidence, it must be assessed. Section 155 of the Evidence Act, Cap.6 of Uganda defines what is sufficient to corroborate evidence and provides:
‘In order to corroborate the testimony of a witness, any former statement by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.’
This position is what brings about the use and meaning of voir dire in our jurisdiction.
An example of a trial within a trial to corroborate evidence
For example, in the case of *Uganda v Asiimwe Edison (Criminal High Court Session No. 37 of 2003) ((Criminal High Court Session No. 37 of 2003))  UGHC 3 (27 January 2004), Hon. Mr. Justice Lameck Mukasa conducted a voir dire to determine the veracity of the testimony of the victim.
In sexual offences like the offence of defilement contrary to section 129 (1) of the Penal Code Act, the law requires that the prosecution proves beyond reasonable doubt that:
- There was unlawful sexual intercourse with the victim;
- The victim was at the time of the alleged sexual intercourse a girl under the age of 18 years.
- The accused person was the male who had the unlawful sexual intercourse with the victim;
In that case, Court had to determine that the alleged victim was underage (minor) at the time of the crime. Medical experts were examined and counsel, the assessors and the judge agreed that the victim had been a minor at the time of the offence.
Despite opposing counsel’s submission, Judge Lameck cited the law in his judgment saying that;
The law regarding sexual offences as stated in the Supreme Court case of Basita Hussein v/s Uganda Supreme Court Criminal Appeal No. 35 of 1995 is as follows: –
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Sexual intercourse is proved by the victim’s own evidence and corroborated by medical or other evidence. Though desirable it is not a hand and fist rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration …. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt.”
James sues Peter.
Peter alleges that James suffered a mental breakdown five years ago when the alleged event happened and still is mentally challenged.
A witness to a case, or a party to a suit must be of sound mind. Once Peter gives to Court an oral or written notice of James’ alleged previous commitment to a mental asylum or previous mental breakdown, Court must set up a hearing to determine whether or not James can be a party or witness to the suit as the law requires. This hearing is subject to the main suit but must be determined first for the main suit to commence.
If Court determines that James is sane or is mentally capable to continue with the main suit, the main suit will commence/continue.
If Court finds that James is mentally challenged but has lucid moments, it will determine whether he can commence/continue the main suit or be assisted by a next friend as the law requires.
Lucid moments are difficult to determine without a medical expert on mental issues. The Court will also set up a trial within a trial to assess the medical expert’s expertise and whether his testimony can guide the court.
Procedure in a voir dire
A voir dire is an actual hearing although it is within another main suit/hearing. Therefore, parties follow the usual procedure of examination-in-chief, cross examination, re-examination, use of exhibits, calling witnesses, making oral and written submissions, judge making a ruling or giving a judgment, etc.
The results of a voir dire do not necessarily dictate how the main suit/hearing will be. They simply determine their own issues at hand. Once determined, the main suit must go on, if at all, as an independent process.
BY ATUHAIRWE AGRACE
This article appears in Vol 11, Issue 4 of our law newsletter. To receive the Deuteronomy in real time, click HERE