§ SECTION 148 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Cross-examination as to previous statements in writing

Question first, confront to contradict. A witness may be cross-examined on his own earlier written statement — without the writing being shown to him or proved. But to contradict him by it, his attention must first be called to the very parts to be used.

How to read Section 148

You may cross-examine a witness on his earlier written statement without producing it — but to contradict him with the document, you must first put the relevant parts to him.

Free to question

A witness may be cross-examined on his previous written statements (relevant to the case) without the writing being shown to him or proved.

But to contradict

If the aim is to contradict him by the writing, a further step is required.

Confront first

Before the writing can be proved, his attention must be called to those parts to be used for contradiction.

The bare Act

The section in its own words — a freedom, and a condition.

Section 148 · verbatim

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

In short: a cross-examiner may test a witness against his own earlier written words — an affidavit, a signed statement, a statement reduced into writing — and may do so without first showing the writing to the witness or proving it. He can simply ask about what the witness said before, probing for inconsistency. But there is a crucial fair-play condition when the object shifts from questioning to contradicting: if the cross-examiner intends to use the writing to contradict the witness, then before the writing can be proved, the witness’s attention must be drawn to the very parts to be used against him. The reason is fairness — the witness must have a chance to explain the apparent inconsistency, or to accept or reject it, before the document is put in as proof of the contradiction. So: question freely, but confront before you contradict.

→ This carries forward IEA 1872 § 145 — cross on a prior writing without showing it, but confrontation before contradiction.

Glossary

previous statements in writing

The witness’s own earlier statement, written or reduced to writing.

reduced into writing

An oral statement later recorded in writing (e.g. a statement taken down).

relevant to matters in question

Bearing on the issues in the case.

without the writing being shown or proved

The cross-examiner need not produce or prove it to question him on it.

intended to contradict him by the writing

To use the document to establish an inconsistency against him.

attention… called to those parts

The fair-confrontation step before the writing is proved.

The picture

Ask about the earlier writing freely — but to prove it as a contradiction, put the relevant parts to the witness first.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

Question freelyConfront to contradict

question freelyCross-examine on the prior writing without producing it

In one lineA witness may be cross-examined on his previous written statement (relevant to the case) without the writing being shown to him or proved.

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved;cross on the prior writing, unshown…the examiner may probe the witness’s earlier written words without first producing or proving the document.

ExampleA witness swore an affidavit earlier. In cross, counsel may ask him about what he said in it — testing for inconsistency — without handing him the affidavit or putting it in evidence.

✗ Not thisThe witness has no right to demand the writing be shown to him merely to answer questions about it. Production is not a precondition to questioning — only to contradicting.

confront to contradictPut the passage to him before the writing is proved

In one lineIf the writing is to be used to contradict him, his attention must first be called to the very parts to be used — before the writing can be proved.

but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.confront the relevant parts before proving the writingthe witness must be given a fair chance to explain the passage before it is put in as proof of the contradiction.

ExampleCounsel wants to prove the affidavit to show the witness now says the opposite. He must first read the conflicting passage to him and ask about it; only after that may the affidavit be proved for the contradiction.

✗ Not thisYou cannot spring the writing as a contradiction without warning. Proving the document to contradict him is barred until his attention has been drawn to the very parts relied on.

Connected provisions

§ 147 · back

Evidence as to matters in writing

The contents of a document are proved by the document — § 148 is about cross-examining on a prior writing.

§ 149 · next

Questions lawful in cross-examination

Test veracity, position and credit — even if self-incriminating; but a rape-shield protects the victim.

credit

Contradicting a witness

How prior inconsistent statements bear on a witness’s credit — the impeachment rules that follow.

lineage

IEA 1872, § 145

Carried forward — cross on a prior writing without showing it, but confrontation before contradiction.