Evidence Flashcards
Explain what each of the following are, and why they are important: witness statements; oral testimonies; and affidavits.
These are all methods of presenting evidence to the court.
A witness statements is a document setting out the witness’s statements of fact, and is accompanied by a statement of truth. Any real evidence (any evidence that physically exists) must be accompanied by a witness statement explaining its significance.
An affidavit is the same but is made under oath, not merely with a statement of truth. Evidence submitted in an application for an interim injunction
Oral testimonies are oral ovidence given under oath.
What is hearsay evidence? Is it admissable?
Second hand accounts, or accounts even more removed. Witness statements by someone who does not appear in court to be cross examined are also hearsay (as the witness statement is effectively a second hand account of what the witness said). By contrast, a statement heard in the court is direct evidence.
For example: X says that A hit the deceased. This is direct evidence if he says it in court or writes it in a witness statement and then appears in court. Y says that Z said that he saw A hit the deceased. This is direct evidence of what Z said, but is hearsay evidence of A hitting the deceased.
When assessing whether to accept hearsay evidence, the court will consider whether it would have been reasonable to call the person who made the original statement in as a witness; whether the original statement was made contemporaenously with the events in question; whether it involves multiple hearsay; and if anyone involved had a motive to conceal/misrepresent something.
When does privilege apply and who can waive it?
Privilege exists between a client and his attorney but can be waived by the client unilaterally if he chooses to disclose a priviliged document. But documents disclosed accidentally, and it is obvious it was an accidental disclosure, then priviliege still applies.
Anything that’s part of a genuine attempt at a settlement discussion is priviliged, regardless of whether it’s labelled as a priviliged document or not. This can only be waived by both parties together. If there’s a dispute, a different judge to the trial judge will decide whether a document is priviliged or not.
What are the Whitford guidelines for survey evidence?
- Interviewees must be a representative cross section of the relevant public.
- The size of the sample must be statistically significant.
- The survey must be conducted fairly - no leading questions or questions which permit an interviewee to hypothesise or speculate.
- All answers must be recorded exactly and fully disclosed to the opposition.
- Instructions given to the interviewers on how to conduct the survey must be disclosed.
- Where the answers are coded for entry into a computer, the coding instructions must be disclosed.
- The number of surveys, how they were conducted and the number of people involved must be fully disclosed.
What do you have to show to get permission for a survey?
That it would be a good survey of real value, will be held to be valid at trial and that the likely utility of the results would outweight the costs (the overiding objective).
The Whitford guidlines provide guidance on this.
NB you can conduct a genuine pilot survey without permission but at your own risks as to costs.
