Evidence 'B' Files Part 2 Flashcards
What are presumptions of Law?
What are presumptions of fact?
- Presumptions of law are inferences that have been expressly drawn by law from particular facts. They may be conclusive or rebuttable
- Presumptions of fact are those that the mind naturally and logically draw from the facts given
The section 18(1) makes a hearsay statement admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
According to section 16(1) of the Evidence Act 2006, circumstances in relation to a statement by a person who is not a witness, include…
Section 16(1) Evidence Act 2006 defines “circumstances”. Circumstances in relation to a statement by a person who is not a witness, include –
A The nature of the statement, and
B The contents of the statement, and
C The circumstances that relate to the making of the statement, and
D Any circumstances that relate to the veracity of the person, and
E Any circumstances that relate to the accuracy of the observation of the person
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 some other evidence which, if stated expressly, would be inadmissible – for example where an opinion is based largely on propensity evidence.
A - Describe what privilege is in relation to the giving of evidence
B – Name two privileges outlined in the Evidence Act 2006
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.
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
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.
- 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 considerationTo
The general purpose of the examination-in-chief is to:
A Weaken, qualify or destroy the opponents case
B Elicit testimony that supports the case of the party conducting the cross examination
C Elicit new facts arising out of the cross-examination of the defence witnesses
D Establish the prosecution case through the defence witnesses
B Elicit testimony that supports the case of the party conducting the cross examination
What is the general rule in relation to ‘establishing facts?’
A All facts in issue must be proved by evidence
B All facts relevant to the issue must be proved
C All facts in issue and facts relevant to the issue must be proved by evidence
D All facts in issue and facts that are formally admitted must be proved by the court
C 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:
A Presumptions of fact
B Admissions for the purpose of trial
C Presumptions of law
D Judicial notice
D
A witness is eligible to give evidence if…
A They can be required to give evidence against their will for the prosecution
B They are not married to the defendant
C They are lawfully able to give evidence on behalf of both prosecution and defence
D They can be required to give evidence against their will for the defence.
C 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:
- Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
- Juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question
- There is a danger that witnesses will make mistakes about the meaning or content of statements made by other people
- The danger attributing undeserved weight to evidence that cannot be adequately or properly tested. There needs to be a ‘reasonable assurance’ of reliability, which means that the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to weight.
What is a leading question?
Give two exceptions to the general rule concerning leading questions
A Is one that directly or indirectly suggests a particular answer to the question
Sec4 EA06
B Any two of the following:
- Introductory or disputed facts
- Identification
- Assisting memory
- Contradiction
- Hostile witnesses
Define the following terms:
- Direct evidence
- Admissible evidence
A Direct evidence: any evidence by a witness as to a fact in issue which he or she has seen, heard or otherwise experienced.
B 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?
- Dead
- Out of the country
- Unfit (Age, mental or physical disability)
- Cannot with reasonable diligence be identfied or found
- Not compellable
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 three 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 that will be or has been made 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
- Forms an integral part of the event before the court, or
- Consists of a mere fact that a complaint has been made in a criminall case
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 the types of questions that can be asked once a witness has been declared hostile?
The witness may be: Questions:
- Leading questions
- Designed to probe the accuracy of memory and perception.
- Prior inconsistent statements
- Challenged with regard to how they know the facts about that which they are testifying
Once the judge has granted an application to treat a witness as hostile, that witness may be:
(1) Asked leading questions
(2) Asked questions as to prior inconsistent statements
(3) asked any question whatsoever whether relevant to the matter under inquiry or
not
(4) Tested on such matters as the accuracy of his / her memory and perception
Which are correct?
A -1 ony
B - 1 AND 2
C 4 and 1
D 1,2 & 4
D- 1, 2 and 4 only are correct
Why is opinion evidence unreliable?
- where a witness offers a bare opinion it holds little probative weight
- there is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence.
- The opinion evidence could 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
Section 8 of the Evidence Act 2006 relate to fairness and general exclusion. What is the provision set out in section 8?
What is the section 8 test?
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is
outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) (the Judge must take into account the right of the defendant to offer an effective defence.)
The s 8 test involves balancing the probative value of evidence against the
risk that it will:
• have an “unfairly prejudicial effect on the proceeding” or
• “needlessly prolong the proceeding”
List the reasons why s85, EA 06 ‘Leading Q’s’ are not 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 result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.
- List the exclusive rules of evidence?
- In deciding whether evidence is admissible what are the key principles of evidence law?
- Veracity; Propensity; Hearsay; Opinion; Identification; Improperly obtained Evidence
- Relevance; Reliability and Fairness (Public interest is helpful in testing relevance)
