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CH 8 Evidence > Evidence > Flashcards

Evidence Flashcards

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1
Q

What are the three categories of Rules of Evidence?

A

1 - How evidence may be given
2 - Who may give evidence
3 - What type of material may be given in evidence

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2
Q

What makes evidence relevant?

A

If it has a tendency to prove or disprove anything of consequence to the determination of a proceeding

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3
Q

What are the “facts in issue”?

A

The facts that the prosecution must prove in order to establish the elements of the offence OR those which the defendant must prove for a defense if they have the burden of proof

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4
Q

What are some examples of unfair prejudice?

A

Danger that jury will give more weight to evidence than it deserves, be misled by the evidence, use the evidence for an illegitimate purpose

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5
Q

The ordinary way of giving evidence is to give it orally in court or via a filed affidavit if consented to by all paerties. What are some examples of giving evidence in an alternative way?

A
  • In the Courtroom but unable to see the defendant eg screen
  • AV link
  • In a separate room
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6
Q

Define witness

A

A person who gives evidence and is able to be cross examined

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7
Q

Define child complainant

A

A complainant who is under 18 years at the time the charging document is filed.

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8
Q

What is a hearsay statement?

A

A statement made by somebody who isn’t a witness eg a Police officer giving evidence of what somebody has told him.

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9
Q

What is veracity?

A

Someones disposition to refrain from lying

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10
Q

What is direct evidence?

A

Any evidence offered by a witness which they have seen, heard or experienced eg an assault victims account of the incident

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11
Q

What is circumstantial evidence?

A

Evidence of circumstances that do not directly prove any fact in issue but which allow inferences about the existence of those facts to be drawn

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12
Q

What is the purpose of evidence law?

A

To secure the just determination of proceedings

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13
Q

What is the fundamental rule around the admissibility of relevant evidence?

A

All relevant evidence, subject to any inadmissibility rules, will be admissible.
- Non relevant evidence will be inadmissible

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14
Q

What is the s8 rule around Fairness and exclusion? (Balancing test)

A
  • Evidence may be excluded if it would result in some unfair prejudice in the proceeding
  • Otherwise admissible evidence may be ruled inadmissible if it was obtained unfairly
  • Evidence that will needlessly prolong the proceeding will also be excluded
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15
Q

If both parties agree can inadmissible evidence be allowed? (s9)

A

Yep if the judge agrees. s9 also allows defense and prosecution to agree to facts not in dispute

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16
Q

What is the Woolmington principle?

A

The presumption of innocence until proven guilty

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17
Q

How do defenses differ from just denying the incident? IE evidential burden

A

Once the prosecution have proved the facts and the defense want to bring up a defense to those facts (rather than just missing the actus reas and mens rea) eg self defense. They must raise that defense as a “live issue rather than getting the judge or jury to infer it. This is their evidential burden. Prosecution then have the burden of proof to negate that defense

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18
Q

What are the standards of proof for prosecution and defense?

A

Prosecution - beyond reasonable doubt

Defense - on the balance of probilities

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19
Q

What is reasonable doubt?

A

An honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence

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20
Q

Can one witnesses testimony be enough to prove a case?

A

Yes, provided that the court is satisfied that their evidence is reliable and accurate. The only exceptions are perjury and treason which both require corroboration.

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21
Q

Is there a requirement for judges to warn a jury about the dangers of uncorroborated evidence?

A

No, subject to s122 where a judge may warn a jury of the need for caution if they are of the opinion that uncorroborated evidence may be unreliable. They may also consider a similar warning for hearsay evidence.

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22
Q

Can a judge give a corroboration warning to a jury in cases involving child complaints?

A

Only if the same warning would have been given if the complainant was an adult

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23
Q

Who takes an oath or affirmation?

A

Any witness aged 12 and over. Witnesses under 12 make a promise to tell the truth

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24
Q

Can a witness give evidence without taking an oath?

A

With the judges permission (they still make a promise to tell the truth and are treated as if they gave an oath)

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25
What Act governs the procedure of trials?
Criminal Procedure Act 2011
26
Outline the process of a witness giving evidence
1 - Takes stand and Oath 2 - Gives evidence in chief 3 - May be cross examined by all parties other than the person calling them 4 - May be reexamined
27
Outline the trial process
- Prosecution makes an opening address then presents its case, including witnesses - Defence then makes its opening statement at the conclusion of the prosecution case and presents its case, including witnesses. - Prosecution makes its closing address to the jury (No new info can be added) - Defence makes its closing address to the jury - Judge sums up before the jury retires
28
What are the two means by which a witness can refresh their memory?
- Refreshment of memory in Court | - Refreshment of memory out of Court
29
What conditions must be met to permit the refreshment of memory in Court?
- Need the leave of the judge - The document must be shown to every other party in the proceeding - The document must have been made or adopted by the witness at a time when their memory was still fresh (6 weeks is about the limit) - The document must have been made by the witness or on his behalf, in his presence and assented to.
30
Is the document a witness refreshes their memory from in court evidence?
No as in theory it is just assisting the witness to give oral testimony
31
Can you refresh your memory from excluded statements?
Rarely
32
What is refreshment of memory outside of Court?
Checking their recollection of events with the officer who interviewed them, reading a brief of evidence, basically anything as long as they're not being given any new information.
33
If a person refreshes their memory prior to trial must defence be advised and provided with a copy of the document they used?
Yes. You only need to give them the document if they ask for it though
34
When can a witness be declared hostile? Why would you do this?
They must display active hostility towards the party calling them. Once declared hostile the witness may be cross examined to the extant that the judge considers necessary for justice. You cannot normally cross examine your own witness.
35
What things could lead to a witness being declared hostile?
- Exibits lack of veracity (They're full of the lies) when giving evidence unfavorable to the person who called them - They give evidence inconsistent with a statement made by them in a way that looks like they're trying to ruin the case. - They refuse to answer questions or withhold answers
36
Can you call a party who is known to be hostile to you?
Yep (fireworks will ensue)
37
What is required for Initial Disclosure?
- SOF - Charging document - Summary of right to apply for further information prior to entering a plea - The maximum penalty for offence - Previous conviction list
38
When must full disclosure be made?
As soon as practicable after a defendant has - Pleaded Not guilty - If child or young person, as soon as they have their first appearance in Youth Court
39
What material must be disclosed?
Anything that has a bearing on the case against the defendant
40
Can the defence inspect an exhibit?
Yes, after full disclosure has been made. The prosecution may place conditions on this in order to maintain the security and integrity of the exhibit.
41
When does the prosecution have to give the name, address of identification witnesses and description given by them to defence?
Any time it is requested by defence after the person has been charged. Even if you do not intend to call that witness.
42
Who is entitled to have one support person with them while giving evidence (More, with the judges permission)?
- Complainant | - Child witnesses
43
If the complainant is giving evidence via av link are they still entitled to a support person?
Yes, nothing changes no matter what way they give their evidence.
44
Can the defendant have a support person while they give evidence?
Yes, but like witnesses they must have the leave of the judge.
45
Can a support person help the complainant or witness in any way?
Only to support them. They may not prompt or advise them in any way.
46
Is a witness entitled to communication support during a trial? eg interpreter
Yes but only to give their evidence and answer questions. They do not get it to understand the proceeding outside of their own evidence.
47
What are some grounds for giving evidence in an alternative way?
- Age/maturity of witness - Physical, intellectual, psychological impairment of witness - Trauma suffered by witness - Witnesses fear of intimidation - Cultural or religious beliefs of the witness - The nature of the proceeding - The relationship of the witness to any party - Absence of the witness from New Zealand - Any other grounds likely to promote the purpose of the Act
48
When an application is made to give evidence in an alternative way what must the judge do?
Give each party an opportunity to be heard in chambers
49
If the judge approves giving evidence in an alternative way what options are there?
- In Court but unable to see defendant eg screens - From an appropriate place outside the courtroom - By video record made before the hearing
50
Child witnesses are entitled to give their evidence in an alternative way. When must notice of this be given?
No later than case management hearing
51
Is an associated defendant a compellable witness?
Only if proceedings against the associated defendant have been completed.
52
What is privilege?
The witness is compellable but may refuse or be prevented from answering certain questions on the grounds of privilege
53
What are some examples of privilege as per the Evidence Act 2006?
- Communications with legal advisers - Plea discussions - Communications with a minister of religion - Information obtained by medical practitioners and clinical psychologists - Privilege against self incrimination - Informer privilege
54
If Police came into possession of privileged information through legal means what would happen?
Judge would likely prevent disclose of this information
55
Can a holder of privilege waive their Right to that privilege?
You knows it but an "interested person" may still apply to make the information inadmissible (Eg went to confession, told the priest he stabbed a guy, priest waives privilege)
56
What is propensity evidence?
Evidence that shows a persons tendency to act a certain way or have a particular state of mind
57
Can propensity evidence be offered?
Yes, provided its relevant, but there are restrictions around offering propensity evidence about the defendant.
58
Under s41 when can the prosecution offer propensity evidence about the defendant?
Once they open that door by giving propensity evidence it becomes game on
59
Under s 42 when can a defendant offer propensity evidence about a co-defendant?
When given leave by the judge and if that propensity is relevant to a defence raised by the defendant
60
Under s43 when is propensity evidence offered by the prosecution about the defendant admissible?
When the Court is satisfied that the value of the evidence exceeds the prejudicial nature of the evidence
61
What is required before a complainant can be asked any question regarding their sexual experience with anyone other than the defendant?
The permission of the judge. Permission will only be given if the judge is satisfied that the evidence is of direct value to facts at issue. No evidence can be given or question asked in regards to the complainants reputation in sexual matters.
62
Define hearsay
A statement made by a person other than a witness and is offered in evidence to prove the truth of its contents
63
Are hearsay statements admissible?
Generally no. there are specific exceptions under the Act
64
If a person gives evidence in proceedings then another witness may give evidence regarding what they said. Is this hearsay?
No as the person is present at the trial and so may be crossexamined. (The person must give their evidence first however)
65
If someone told you they smelt cannabis but is not a witness and you say a member of the public told you that and that helped you form a belief for a drug search is this hearsay?
No as you are showing how YOU reached your conclusion not using his statement as proof that cannabis was there.
66
Under s18 when can a hearsay statement be made admissible?
The circumstances provide reasonable assurances that the statement is reliable AND - The maker is unavailable OR - Undue expense or delay in making that person available.
67
When can business records be given in hearsay?
When there is no useful purpose in requiring the person to be a witness s they cannot be expected to recollect the matters in the documents Notice must still be given
68
What notice must be given to all parties when using hearsay?
Their intent to use hearsay and all the circumstances around the hearsay (who,what, when etc)
69
When can identification, other than formal id, be admissible?
When there is a good reason for not conducting formal ID
70
What are some good reasons for not conducting a formal ID?
- Refusal of subject to take part - Singular appearance of subject - Substantial change in appearance - Couldn't reasonably anticipate ID would be an issue - ID was made soon after the offence to an officer in the course of his initial investigation - ID from chance meeting
71
Can you conduct dock ID?
Nah bo
72
If you gt a positive formal ID is identification proven?
Yes unless defence can prove on balance of probabilities that the process was flawed or issues with witness eg bad light, distance etc
73
When should formal ID procedure be carried out?
In the investigation or soon after arrest. The sooner the better
74
Who can conduct an identification parade?
Sergeant or higher
75
How many people need to be in a formal id procedure?
8. 7 plus suspect
76
Is voice identification admissible?
Only if prosecution can prove on balance of probabilities that it is reliable

CH 8 Evidence (1 decks)

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