Chapter 8 - Evidence III Flashcards
What is the difference between a support person and a communication assistant?
Support person is to reduce the stress and trauma for the witness only allowed to support not prompt or advise.
Communication – Assists with translation/interprets when party no proficient in English or have communication disabilities.
Describe 4 grounds that may lead to the judge giving a direction that a witness is to be cross examined in an alternative way, e.g. to be heard in chambers, screened off, by a video recording.
Age and maturity of the witness.
The trauma suffered by the witness.
The witness’s dear of intimidation.
Physical, intellectual, psychological or psychiatric impairment of the witness.
Nature of the proceeding.
Absence of likely absence of the witness for New Zealand.
What reasons may be used for a judge to excuse a witness from testifying?
If they are unfit because or age or physical or mental condition.
What are some privileges that exempt a witness?
Privilege for: communication with legal advisors. Solicitors trust accounts. Preparatory materials for proceedings. Communication with ministers of religion. Information obtained by medical practitioners and clinical psychologists. Against self incrimination. Informer privilege
When a claim of privilege is made what needs to be found out around scope of privilege?
It is important to enquire whether the material in question, be it a communication, information, opinion or document, is within the scope of privilege in question.
What class of evidence do veracity and propensity come under?
Character evidence.
Veracity - disposition to refrain from lying.
Propensity – tendency to act in a particular way.
What is the difference between hearsay and an out of court statement?
Hearsay statement made by a person other than the witness, where a out of court statement is
made by a witness are not excluded by the hearsay rule on the basis that the maker is available to be cross examined.
What is the exception to excluding hearsay statements?
The circumstances relating to the statement provide reasonable assurance that the statement is reliable
AND EITHER
The maker of the statement is unavailable as a witness or
The judge considers undue expense or delay would be caused if the maker of the statement were required to be a witness
Briefly describe the gist of admissibility of visual identification evidence.
Admissible if a formal procedure is followed by officers in obtaining visual ID evidence of a person alleged to have committed an offence or good reason for not following a formal procedure. Defendant must prove on balance of probabilities the evidence is unreliable.
Admissibility may stand or fall on the issue of whether evidence was gained through a formal identification procedure. Briefly describe the formal procedure requirements for formal identification.
- Is observed as soon as practicable after the alleged offence is reported.
- Suspect compared to no few than 7 other people of similar appearance.
- No indication is given to the person making the ID who the suspect is.
- Person making the ID must be informed suspect may or may not be included.
- Written record of procedure followed and provided to Judge and Defendant.
- Officer to certify the formal procedure is true and correct and provide to Judge and Defendant.
- Complies with any further requirements provided for in regulations made under sec 201.
Briefly describe circumstances that would constitute a good reason for not following a formal identification procedure
- Refusal of suspect to take part in procedure or permit photo be taken.
- Singular in appearance.
- Substantial change in appearance of suspect after alleged offence.
- Police did not anticipate that ID would be an issue at the trial.
- Suspect ID’d to Police soon after offence was committed.
- Suspect ID’d by chance meeting between witness and suspect.
