Chapter 10
COURT PROCEDURE IN COUNTY COURTS
Division 4
Examination by Court
§ 287. Hearing of witnesses
(1) Section 288 of this Code applies to the hearing of witnesses.
(2) A witness shall be heard in the absence of the witnesses who have not been heard.
(3) [Repealed - RT I 2008, 32, 198 - entry into force 15.07.2008]
(4) A witness bearing a fictitious name shall be heard by telephone pursuant to the procedure provided for in subsection 67 (5) and clause 69 (2) 2) of this Code. The participants in the proceeding shall submit their questions to the person bearing a fictitious name through the judge.
(5) At the request of a party or on its own initiative, the court may allow a telehearing to be conducted pursuant to the procedure provided for in § 69 of this Code or use a partition to hide the witness form the accused.
(6) Witnesses who have been heard shall leave the courtroom only with the permission of the court.
§ 287 1. Application of hearing
(1) A judge shall identify a witness and ascertain the relationship between the witness and the accused and the victim and the relationship between the victim and the accused.
(2) The personal data of a witness shall not be disclosed if the witness has been declared anonymous pursuant to § 67 of this Code in order to ensure the safety of the witness.
(3) At the beginning of hearing a witness, the court explains to the witness the legal bases for refusal to give testimony, the obligation to speak the truth in court, and obtains the signature of the witness to this effect.
(4) A judge shall warn a witness of at least fourteen years of age that he or she shall be punished pursuant to criminal procedure for his or her for refusal to give testimony without any legal basis or for giving knowingly false testimony.
(5) A witness who has been acquitted or convicted in the same criminal offence as a joint principal offender or an accomplice shall not be warned about a criminal punishment and he or she shall be explained his or her right to refuse to give testimony.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
§ 288. Cross-examination
(1) In a cross-examination, the party to the court proceeding at whose request the witness has been summoned to the court is the first to examine the witness. If several participants in the proceeding have requested a witness to be summoned and they fail to reach an agreement concerning the right of first examination, the court shall determine who is the first to examine the witness.
(2) It is prohibited to pose leading questions during a first examination without the permission of the court. A first examination is followed by the second examination by the counter-party.
(3) Leading questions may be posed in the second examination in order to verify the testimony given in the first examination. In the second examination, leading questions shall not be posed concerning new facts without the permission of the court.
(4) The person who was the first to examine a witness may examine the witness again in order to clarify the answers given in the second examination. Leading questions may be posed without the permission of the court only concerning the new facts treated in the second examination.
(5) A court may, at the request of a party to the court proceeding, overrule prohibited or irrelevant questions posed to a witness during cross-examination. The court may, on its own initiative, overrule questions which harm the witness' dignity.
(6) The court has the right to pose questions to a witness who has been cross-examined.
(7) Taking into consideration the mental or physical condition of a witness, the court may prohibit cross-examination and examine the witness on its own initiative or on the basis of the written questions prepared by the parties to the court proceeding.
(8) § 66 and subsections (3) and (6) of this Code apply to cross-examination.
(9) During cross-examination, a party to the court proceeding may :
1) use visual aids which are not evidence but help to present the testimony of the witness without being misleading ;
2) submit evidence and documents to the court and question the witness about their authenticity, origin and interconnection thereof ;
3) allow the witness who does not remember the facts relating to a subject of proof to examine a document or another object which may help the witness to recall the facts regardless of the admissibility of such documents or objects as evidence.
(10) If a witness refuses during cross-examination to answer the question of a party to the court proceeding, with the exception of the case prescribed in subsection (5) of this section, the court interrupts the cross-examination and decides on the use of the earlier testimony given by the witness as evidence at the request of the party on the basis of clause 291 (1) 2) of this Code regardless of the content of the testimony hitherto given in the cross-examination. In the case specified in this subsection, testimonies obtained in interrupted cross-examinations are evidence only with the consent of the parties.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
§ 288 1. Leading questions
(1) A court may allow to pose leading questions during the first examination if the witness is clearly hostile with respect to the person who examines the witness first, clearly ties to hide the truth or absconds from replying to questions.
(2) For the purpose of a smoother progress of the hearing of a witness, a court may allow to pose leading questions in other cases if :
1) the parties consent to thereto ;
2) the question pertains to a fact or contains a statement which is not contested ;
3) the question is necessary to for making an introduction to the object of questioning ;
4) due to the age or state of health of the witness it is difficult for him or her to understand questions which are not leading ;
5) the witness states that he or she does not remember well the circumstances which are the object of the questioning.
(3) If a party has not applied from the court the exclusion of a question before commencement of replying to it, the party shall be deemed to have agreed to the question and the court need not give a separate permission for leading questions.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
§ 288 2. Rights of victims, civil defendants, third parties and accused in cross-examination
(1) A victim, civil defendant, third party and accused are the first to examine a witness requested by them if the prosecutor or a counsel has not requested the summoning of the same person.
(2) In the cases not specified in this section, a victim, civil defendant, third party and accused may pose questions to a witness after the cross-examination with the permission of the court, if dismissal of the request would significantly damage the interests of the participant in the proceedings.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
§ 289. Verification of credibility of witnesses
(1) In order to verify the credibility of the testimony of a witness, the court may, at the request of a party to the court proceeding, order that the testimony given by the witness in pre-trial procedure be disclosed during the cross-examination if such testimony is in conflict with the testimony given in the cross-examination.
(2) Testimony given by a witness in pre-trial procedure concerning which the witness has already given testimony in cross-examination may be disclosed.
(3) In order to verify credibility, other documents or data recordings which contain earlier statements of the witness and which are in conflict with the testimony given during cross-examination may be also disclosed during cross-examination.
(4) For verification of credibility of a witness, persons to whom the witness has previously made a statement which is in conflict with the testimony given in cross-examination may be heard or interrogated.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
§ 289 1. Earlier testimony of witness in court as evidence with possibility of cross-examination
(1) A court may accept the earlier testimony of a witness used on the basis specified in subsection 288 (9) of this Code for proving the facts relating to the subject of proof, if :
1) the testimony is deposited ; or
2) the testimony concerns the damage caused to the witness by the criminal offence subject to proceedings, the testimony was given immediately after the commission of the criminal offence and there is reason to believe that the person remembered such facts considerably better at the time of giving the testimony than during the court proceedings.
(2) A court shall accept the earlier testimony disclosed on the basis specified in § 289 of this Code for establishment of the facts relating to a subject of proof, if such testimony has been deposited.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
Procedure for witness testimony - national proceedings
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