Evidence Flashcards
Relation to oaths and affirmations
Witnesses who are 12 years of age or older?
Witnesses under the age of 12?
12 and over must take an oath or affirmation.
Under 12 must make promise to tell truth and Judge tells them the importance of telling the truth and not telling lies.
Any witness of any age can give evidence without oath, affirmation or promise if Judge allows and tells them the importance of telling the truth and not telling lies.
When will propensity evidence about a defendant be admissible?
Where the evidence has a probative value that outweighs any unfairly prejudicial effect on the defendant.
What is the definintion of relevant under Section 8 of the Criminal Discloure Act?
Information or an exhibit, that tends to support or rebut, or has a material bearing on the case against the defendant.
What are the alternate ways that a witness or complainant can give evidence?
- the court room but unable to see the defendant
- from a place outside the courtroom
- by a video record made before the hearing
Section 41 of the evidence act 2006 - ability to offer evidence of ‘good’ propensity.
What does this allow the defendant to do?
Allows defendants to offer evidence about themselves perhaps for tactical reasons
- Defendant offers propensity evidence that he has a criminal history as a burglar and was on the property to steal rather than a rape.
- Defendant offers evidence of a daily routine as an alibi.
Under section 18 of the Evidence Act 2006 What is the general admissibility of hearsay?
- The circumstances provide reasonable reassurance that the statement is reliable and
- the maker of the statement is unavailable as a witness or
- the judge considers whether undue expense or delay would be caused if the maker of the statement were required to be a witness
What is the Sec 8 general Exculsion Evidence Act test?
- balancing the probative value of evidence against the unfairly prejudicial effect on the proceeding or
- needlessly prolong the proceeding.
Evidence will be admitted if its probative value outweighs the risks.
What is eligibility and compellability in terms of witnesses?
- All people are eligible to give evidence
- All people who are eligible are compellable to give evidence
Sec 73 - Compellability of defendants and co-defendants -
Defendant/Associated defendant compellable?
Proceeding has been determined if?
1) Defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.
2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless -
a) The defendant is being tried separately or
b) The proceeding against the associated defendant has been determined by either the charge withdrawn or dismissed, aquitted or sentenced.
Who is the fact finder?
Judge or jury.
What is the prosecutions burden of proof?
Beyond reasonable doubt.
What is the standard of proof that must be reached for voice identification evidence
Proof of reliability on the balance of probabilities.
What is relevant evidence?
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the proceeding.
At any time after a person has been charged with an offence, if they request information about an identification witness, what must the prosecutor supply?
- The name of the witness and (if permitted under section 17, the address) of each identification witness whether or not the prosecutor intends to call them;
- A statement of any description of the offender given by each witness to the prosecutor or police, and
- A copy of any picture or a drawing
What is admissible evidence?
Evidence is admissible if it is legally able to be received by the court.
Propensity evidence can be given about anyone BUT rules apply if its about the Defendant or Victim
covered by sections 41 to 44
41 - defendant can give evidence about himself eg to say I’m a burglar not a rapist, or a go to the gym every Tuesday at 7pm
42 - defendant can give propensity evidence about a co defendant if relevant and judge approves
43 - prosecutor can offer propensity evidence about defendant if probative value exceeds risks
In sexual cases propensity evidence about a complaint and sexual experience may only be offered in accordance with section 44
Timeframe for delivering initial
Disclosure after the commencement of proceedings?
Generally not later than 15 working days
What would be deemed to be ‘unavailable as a witness’ or ‘undue expense and delay’?
- Witness is dead
- Witness is outside NZ and it is not reasonably practicable for them to be a witness.
- Witness is unfit due to age or physical/mental condition.
- Witness cannot be found or
- Witness is not compellable to give evidence
What is an associated defendant?
- A person whom a prosecution has been initiated for an offence arising out of the same events as the offence for which the defendant is being tried.
- The provisions are intended to encompass not only actual co-defendants, but also persons linked to the offending.
A person charged with burglary, both an accomplice who committed the burglary and the person who received the stolen goods would be an associated defendant under Sec 73.
Alternative ways of giving evidence
What must the judge regard?
- ensure fairness of the proceeding so there is a fair trial
- views of the witness
- the need to minimize stress on the witness
- the need to promote recovery of the complainant from alleged offence
- any other relevant factor to the determination of the proceeding
When a witness needs to refresh their memory during questioning, from a statement they have made, what must the prosecutor do?
Seek the leave of the judge to grant the request
Define reasonable doubt…
After considering all the evidence, you have a reasonable uncertainty left in your mind about the guilt of the accused.
Define veracity.
The disposition of a person to refrain from lying.
When does full disclosure occur?
- Full disclosure occurs as soon as practicable after defendant pleads not guilty
- First appearance for CYP at Youth Court
