Evidence 3 April Flashcards
What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by sections 24 & 25 of the Evidence Act 2006?
Justifications for the rule derive from this rationale:
Where a witness offers a bare opinion it hold little probative weight
⦁ There is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence. It may be that the evidence would confuse the tribunal of fact and prolong proceedings
⦁ A witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible – for example where an opinion is based largely on propensity evidence.
Describe what privilege is in relation to the giving of evidence
A privilege in relation to the giving of evidence is the right to refuse to disclosure or to prevent disclosure of what would otherwise be admissible.
Name two privileges outlined in the Evidence Act 2006
⦁ Any two of the following:
⦁ Privilege for communications with legal advisors – s54
⦁ Privilege and solicitors trust accounts – s55
⦁ Privilege for preparatory materials for proceedings – s56
⦁ Privilege for settlement negotiations or mediation – s57
⦁ Privilege for communications with ministers of religion – s58
⦁ Privilege for information obtained by medical practitioners and clinical
psychologists – s59
⦁ Privilege against self-incrimination – s60
⦁ Informer privilege – s64
The general rule about leading questions is that leading questions are not to be put to a witness during examination in chief or re-examination. What are the three reasons why leading questions are not generally permitted?
There is a natural tendency for people to agree with suggestions put to them by saying “yes” even if those suggestions do not precisely accord with their own view of what happened.
Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony
There is a danger that leading questions will lead to in the manipulation or construction of the evidence through collusion between counsel and the witness.
List four of the functions of the judge’s role in a trial by jury:
Decide all questions concerning the admissibility of evidence
Instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
⦁ To explain and enforce the general principles of law that are applicable to the point at issue
⦁ Determine whether there is any evidence that is fit to be submitted to the jury for its consideration
The court has discretion to include propensity evidence against a defendant, if:
The probative value of the evidence outweighs its prejudicial effect
Circumstantial evidence has been defined as:
⦁ A fact that by inference can prove another fact in issue
A person is unavailable as a witness when:
⦁ The person is overseas and can’t be contacted
Before giving evidence in court, witnesses may refresh their memory from:
Their original statement
Their deposition
A presumption of fact is:
⦁ Always rebuttable
Before giving evidence:
The probative value of the evidence outweighs its prejudicial effect
The general purpose of the examination-in-chief is to:
⦁ Elicit testimony that supports the case of the party calling that witness
What is the general rule in relation to ‘establishing facts?’
⦁ All facts in issue and facts relevant to the issue must be proved by evidence
It is not necessary in court to prove facts such as ‘the season of summer in New Zealand is over the period of December to February”, these facts are admitted as:
⦁ Judicial notice
A witness is eligible to give evidence if…
⦁ They are lawfully able to give evidence on behalf of both prosecution and defence
In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?
The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, because:
⦁Lack of Cross-Examination – If the statement’s maker is not a witness, they cannot be questioned about its content or the circumstances in which it was made.
Inability to Assess Demeanor – Juries cannot properly evaluate the credibility of the person who made the statement without seeing their demeanor.
Risk of Misinterpretation – Witnesses may misunderstand or inaccurately report statements made by others.
Potential for Undue Weight – Unverified statements may be given more importance than they deserve, leading to unreliable conclusions. Reliable evidence must be tested to ensure its credibility.
What is a leading question?
A leading question suggests the desired answer or assumes that disputed facts exist
Give two exceptions to the general rule concerning leading questions
Any two of the following:
⦁Introductory or disputed facts
⦁Identification
⦁Assisting memory
⦁Contradiction
⦁Hostile witnesses
Direct evidence
Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.
Admissible evidence
Admissible evidence: evidence is admissible if it is legally able to be received by a court
When is a witness deemed to be unavailable as a witness according to Section 16(2) of the Evidence Act 2006?
Section 16(2) defines what is meant by ‘unavailable as a witness”
For the purpose of this subpart, a person is unavailable as a witness in a proceeding if the person –
Is dead, or
⦁Is outside New Zealand and is not reasonably practicable for him or her to be a witness, or
⦁Is unfit to be a witness because of age or physical or mental condition, or
⦁Cannot with reasonable diligence be identified or found, or
⦁Is not compellable to give evidence
Section 92(1) of the Evidence Act 2006 outlines the duty to cross-examine a witness. When does the duty to cross-examine a witness arise?
The duty to cross-examine will therefore arise under the act when four conditions are present:
The topic of cross-examination must deal with ‘significant matters’ in the proceeding
The matters must be ‘relevant’ and ‘in issue’ in the proceeding
The matters must ‘contradict the evidence of the witness’ and
The witness may ‘reasonably be expected to be in a position to give admissible evidence on those matters.
What are the two exceptions to the general prohibition on previous consistent statement (Section 35 of the Evidence Act 2006)?
A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary:
To respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness, or
⦁ On a claim of recent invention on the part of the witness
There are two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law. Name these two types of offences:
There are two types of offence –
Perjury and related offences (s108, 110 and 111 Crimes Act 1961)
and
Treason (s73 Crimes Act 1961)
In relation to non-expert opinion, in order to be admissible under s24, the statement of opinion must fulfil to basic criteria. Name them:
In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
⦁ Opinion must be the only way in which to effectively communicate the information to the finder of fact
⦁ The witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings.
The veracity and propensity rule do not apply to bail or sentencing hearings except when:
The evidence relates directly or indirectly to the sexual experience of the complainant with any person other that the defendant
The evidence relates directly or indirectly to his or her reputation in sexual matters.
What are two types of questions that can be asked once a witness has been declared hostile?
When a witness has been declared hostile, the prosecutor may conduct the examination-in-chief like a cross examination. The witness may be (any two of):
Asked leading questions
⦁ Challenged with regard to how they know the facts about that which they are t estifying
⦁ Tested on such matters as to their accuracy of memory and perception.
What is the purpose of Evidence law and give 4 examples
The purpose of this act is to help secure the just determination of proceedings by:
Enhancing access to the law of evidence
Avoiding unjustifiable expense and delay
Protecting rights of confidentiality and other important public
interests
Promoting fairness to witnesses and parties
Providing for facts to be established by application of logical rules.
Providing rules of evidence that recognize the importance of the
rights affirmed by the NZ BOR 1990
