4.7 Examination of witnesses Flashcards
What is the test for allowing children and those of unsound mind to be sworn as witnesses?
Section 55(2) Youth Justice and Criminal Evidence Act 1999
The witness may not be sworn for that purpose unless—
(a)
he has attained the age of 14, and
(b)
he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
How has the burden of proving that a witness is 14 and has sufficient appreciation and to what standard?
Section 55(4) Youth Justice and Criminal Evidence Act 1999 ... it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b).
What is the most important difference between cross-examination and examination in chief?
Generally, questions put during examination in chief must be non-leading.
What are the big exceptions when leading questions can be put during examination in chief?
- Issues not in dispute;
2. Where the witness has been deemed hostile.
Which statutory provision deals with witnesses refreshing their memory by looking at written statements?
Section 139 Criminal Justice Act 2003
What is the two-part statutory test for allowing a witness to refresh her memory by reading her witness statement?
Section 139(1) Criminal Justice Act 2003
(a)
he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
(b)
his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
The general rule is that written statements are not read out in court. What are the three exceptions - ways to read out a witness statement in court?
- Where the contents are agreed;
- Where the witness refreshes her memory under s.139 Criminal Justice Act 2003;
- In cross-examination on a previous inconsistent statement.
What is the test for deeming a witness to be hostile?
When the judge forms the view that the witness is ‘not desirous of telling the truth’.
i.e. the witness gives an account inconsistent with their original statement and damaging to the party that called them.
What happens when the judge allows a party to treat a witness as hostile?
The party may cross-examine the witness and put it to them that their original statement was true.
What is the general rule on previous consistent statements?
They are not evidence that the witness is telling the truth. They are hearsay.
What are the exceptions to the general rule that previous consistent statements are not evidence that the witness is telling the truth?
- Res gestae;
- The suspect’s response to the police accusing her;
- Complaints under s.120 Criminal Justice Act 2003;
- Recent fabrication.
What is res gestae?
Evidence that would be treated as hearsay except that it was communicated instantaneously or in the immediate heat of the incident, and is therefore admissible to prove the allegation.
What is the doctrine of recent complaint?
An old common law doctrine under which it was believed that the sooner the victim complained of an offence, the more likely it was to be true. Now made redundant by Section 120 of the Criminal Justice Act 2003.
What is the position on admitting previous, consistent complaints as evidence?
Broadens the doctrine of recent complaint.
Section 120(4)-(7) Criminal Justice Act Complaints are admissible where the complainant testifies that the earlier complaint was made and that it was true. However, the statement must have been 'made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings.'
How can a witness rebut an allegation that she has recently fabricated an allegation:?
Section 120(2) Criminal Justice Act 2003 If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.
