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