Chapter 5: Course Of Evidence Flashcards
*Judges role in a jury trial (DIED)
- Decide all questions concerning admissibility of evidence
- determine if evidence is fit for it be submitted to jury for consideration
- explain and enforce the general principles of law applying to the point in issue
- instruct the jury on the rules of law
Features of adversarial justice system (7)
- Facts of the case emerge through questioning witnesses
- each party decides on witnesses
- each party can cross-examine
- judges ensure evidence produced according to the rules
- neither judge is jury go beyond evidence presented and judge generally won’t ask questions
- defendant doesn’t have to give evidence
- facts can be judicially noticed
Oath/affirmation
- instructed by judge to not tell lies
- must then make promise to tell truth
- judge can give permission for person not to take oath I.e disabled person
Sequence for jury trials
Judge opening instructions - crown opening address (defence may follow with a brief statement of issues in dispute) - crown witnesses give evidence and are cross examined, re-examined - defence opening - defence witnesses (if they choose to) - closing addresses - judge summary
*Evidence in chief purpose (elicit testimony)
To elicit testimony that supports the case of the party calling that witness via oral or written testimony after an oath or affirmation
SA**Leading questions reasons not allowed (s89 - not by calling party)
Define: suggests the desired answer or assumes undisputed facts exist
only during cross examination generally
* not alowed due to:
- natural tendency for people to agree with suggestions
- easier for party to elicit answer they wish to achieve from their own witness
- potential manipulation/construction of evidence through collusion
*prosecution Leading questions exceptions (allowed if) s89
- relates to undisputed facts or matters
- put with consent of all parties
- Judge allows it
- with assisting memory
Can be used for ID eg vehicles
Can be used with hostile witnesses or disabled or young witnesses
**Refreshing memory (check statement)
Allowed during evidence in chief if:
- seek leave of judge
- document used shown to all parties
- document made when memory was fresh
- document made by witness or on behalf
- Can read statement of deposition
Previous consistent statement s35
Generally inadmissible as repeated statements may be given by jury more weight than deserved
- can be used as evidence of witness veracity or accuracy if it’s challenged
- or if forms integral part of events
- consists of fact that complaint has been made
**Hostile witnesses
-Exhibits unfavorable lack of veracity unfavorable to calling party
- Gives inconsistent evidence with their statement
- refuse to answer questions or withholds evidence
THEN:
-can be asked leading questions
- asked about prior inconsistent statements
- asked questions proving accuracy of memory and perception
Challenge their veracity
Cross exmaination purposes
-To elicit information supporting the case of the party conducting it
- to challenge the accuracy of the evidence via veracity or contradictions
All parties other than those calling witness can cross-examine
*The duty to cross-examine CRES
Duty to cross examined when:
- when it deals with significant matters that are relevant and in issue
- the matters contradict the evidence of the witness
- the witness is reasonably expected to give admissable evidence on the matters
Unacceptable questions s85
Judge may dissalow or advise witness they aren’t obliged to answer a question based on the question being unfair, repetitive, improper, misleading or too complicated.
This is based on witnesses age, maturity, impairment, linguistic background, nature of proceeding
Re-examination
Only for clarifying or qualifying any issues raised during previous cross-examinarion, no questions on other matters unless permitted by judge.
Evidence in rebuttal/recalling witnesses
Permissable until jury retires/judge delivers
Done after completion of their own case and only with leave of the court
- must relate to formal matter
- relates to conduct of defense
- was not available or admissable before prosecution case closed
- is required in interest of justice
Judicial warning sections
S122 unreliable evidence (hearsay)
S123 ways of giving evidence (no inferences)
S124 warning about lies
S125 children’s evidence (taken same as adult evidence)
S126 ID evidence
S127 delay to report in ASA cases (common)
Judicial warnings s122 unreliable evdnc
May be given when:
- hearsay evidence produced (unable to be cross examined)
- evidence by defendant if that’s the only evidence implicating them (false confession)
- witness who may have motives
- defendant conduct more than 10 years old
*Oc case
- Advise witnesses of time date, refreshing memory with statement, experience in court, known jurors
- look and speak correctly, addressing *judge as sir or ma’am
- answer questions clearly, admit to not knowing rather than guessing
- ask court permission to refer to notebook after introducing it properly
*Previous consistent statement 2 exceptions (as in its allowed)
A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary:
• To respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or
• On a claim of recent invention on the part of the witness
