CLP 19 - Witness Flashcards
What does ‘competence’ mean in relation to witnesses?
Competence is the legal ability of a person to give evidence. A person must be able to (1) understand questions and (2) give comprehensible answers.
Can a defendant be a witness for the prosecution?
No. A defendant cannot be a prosecution witness. In multi-defendant cases, one can only testify against another after their trial concludes.
When are spouses/civil partners compellable as witnesses for the prosecution?
Only in cases involving:
* Domestic violence
* Harm to a child under 16
* Sexual offences against a minor
* Assisting/conspiring/aiding in the above
Are deaf or speech-impaired witnesses competent and compellable?
Yes, if they understand the oath and can communicate (e.g., sign language, writing, interpreter).
What is the difference between competence and compellability?
Competence = ability to give evidence.
Compellability = whether someone can be forced to give evidence.
What is opinion evidence and when is it allowed?
Non-experts may give opinions on common matters (e.g., if someone seemed drunk or emotional), but questions should focus on factual observations.
What are the rules for expert witnesses?
Experts may give opinions if qualified. They must remain neutral, and juries are not required to accept their views.
What is privilege against self-incrimination?
A witness may refuse to answer if it would incriminate them, but this doesn’t apply if it would incriminate someone else.
What is legal professional privilege?
It protects lawyer-client communications (litigation and advice privilege). Only the client can waive it—and if they do, all relevant communication may be disclosed.
Are defendants competent and compellable?
- Competent to testify for themselves or co-defendants.
- Not compellable for prosecution or for their own defence.
Are children or those with disabilities competent and compellable?
- Competent if they can understand questions and give clear answers.
- Compellable if competent.
Are spouses/civil partners competent and compellable?
- Competent for any party.
- Compellable for the defence; limited compellability for prosecution in certain offences.
What must all witnesses do before testifying?
Take an oath or make an affirmation. Children or those with unsound mind must understand the seriousness of telling the truth.
When are leading questions allowed in examination-in-chief?
Only when:
* The point is not in dispute
* The witness is declared hostile
How can a witness refresh their memory?
By referring to their statement if:
* It gives a better recollection
* The evidence is then given from memory, not by reading aloud
What is a hostile witness and what happens if one is declared?
A hostile witness contradicts their earlier statement. If declared hostile, they can be cross-examined by the party who called them.
What are previous consistent statements and when are they admissible?
Normally inadmissible, but allowed under s.120 CJA 2003 when:
* Res gestae (e.g., spontaneous statement during event)
* Suspect’s response to accusation
* Early complaint
* To rebut recent fabrication
Are leading questions allowed in cross-examination?
Yes, they are permitted to challenge the witness’s version of events.
Can a witness’s previous inconsistent statement be admitted?
Yes, if their in-court testimony contradicts or adds significantly to the earlier statement.
What are restrictions on cross-examination?
Must not harass or upset the witness. Sexual history questions require court permission.
What is the purpose of re-examination?
To clarify issues raised during cross-examination. No leading questions allowed unless the issue is not in dispute.
Can witnesses refresh their memory during re-examination?
Yes, if needed and approved by the court.
