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English Criminal Law And Evidence > Evidence: Witnesses > Flashcards

Evidence: Witnesses Flashcards

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1
Q

How is elegibility to testify two-fold?

A

Compellability
Competence

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2
Q

What is meant by compellability?

A

Legal Obligation to give evidence if called upon

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3
Q

Which two cases show who can testify as a witness?

A

R v MacPherson [2005] EWCA Crim 3605
R v Powell [2006] EWCA Crim 3

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4
Q

How is a witness said to be competent?

A

If the court may lawfully receive his evidence

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5
Q

How is a witness said to be compellable?

A

If the court can require him to give evidence even if he does not want to

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6
Q

What is the basic principle of elegibility to testify?

A

Any person is competent

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7
Q

What are the exeptions to being able to testfy?

A

D cannot testify for the prosecution unless they are not in proeedings
Witnesses who cannot give intelligible evidence cannot testify

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8
Q

What is perjury?

A

Lying while under oath, and similar offences where witness believes their statement to be false

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9
Q

Witness who cannot give intelligible evidence can testify.

A

False

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10
Q

What does the party calling a witness must establish competence on?

A

The balance of probability

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11
Q

Which party is the burden on when calling a witness?

A

The party calling the witness

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12
Q

What does the party calling a witness must establish competence on?

A

The balance of probability

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13
Q

What does voire dire mean?

A

A trial within a trial

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14
Q

Can a witness be compelled to testify?

A

Generally yes
A judge can order a summons however they dont have to

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15
Q

Who can retain discretion regarding compellability?

A

The person who is being compeleld as a witness
However court has discretion about whether to order the attendance of a particular witness

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16
Q

Which act gives the accused competence?

A

Criminal Evidence ACt 1898

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17
Q

Historically who could not be a witness?

A

The accused as they were belived that they would lie

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18
Q

What is the procedure of an accused if a witness?

A

Once a witness they can be cross-examined, including by co-accused
In a witness box
The accused not compellable nor for co-accused but can testify defence

19
Q

What is meant by adverse inferences?

A

Not testifying can show bad character - make judgements essentially

20
Q

What are the exceptions of adverse inferences?

A

s35(1) Criminal Justice and Public Order act 1994
Physical or mental condition
It appears to the court that D giving evidence would be undesirable

21
Q

Which act shows it is not contempt for D not to appear as a defence witness?

A

s35(4) Criminal Jusice and Public Order Act 1994

22
Q

Pleading diminshed responsibility automatically bars adverse inferences?

A

False

23
Q

What does s35 of the Criminal Justice and Public order act 1994 contain?

A

Not appearing in court can is not being in contempt for d not to appear but adverse inferences may be drawn
‘As appear proper’

24
Q

What does s35 of the Criminal Justice and Public order act 1994 not contain?

A

Someone with lower mental age than physical age should be entitled to immunity from an adverse inferene being drawn if they choose not to give evidence

25
Q

Which relations cannot generally be compelled as a witness?

A

D’s sopuse of crivil partner

26
Q

What are the exceptions to the general rule of compellability to witnesses with relations to the accused?

A

Can be compelled in cases involing assault/ injury against an under 16 or the spouse/ partner
Any sexual cases agaisnt under 16
Inchoate versions of these
Can be compelled agaisnt a co-accusde in these circusmtances
Can be compelled to testify for the accused

27
Q

Spouses or partners can become vulnerable as a witness against D.

A

True

28
Q

What does the case Warren v Warren [1996] show?

A

The soverign cannot be compelled as a witness

29
Q

True or False the soverign is a compellable witness?

A

False

30
Q

When can judges be compelled to evidence things they have witnessed in a judicial capacity?

A

For collateral matters
Otherwise a judge cannot be compelled

31
Q

What does corroboration mean?

A

Evidence that connects D to the crime, independent of the witness

32
Q

What is the general principle of corroboration?

A

Corroboration is not required to secure a conviction

33
Q

What are the exceptions/ discretions regarding corroboration?

A

Speeding (s89(1) Road Traffic act 1984: cant be convicted just on eye witness
Complainents in sexual offence cases
Cell confessions

34
Q

What does s32(1) of the criminal justice and public order act 1994 state?

A

Abolished the requirement for judges to warn about uncorroborated statements from complainants

35
Q

Regarding sexual offences what are the issues of corroboration?

A

Putting a witness through it to retell
Many judges still require corroboration
Misconceptions of rape and myths

36
Q

What is a cell confession?

A

Where one prisoner testifeis that another prisoner confessed while in prision

37
Q

What is the general principle of a cell confession?

A

Treat with utmost caution

38
Q

Which two cases contain cell confessions?

A

Bendetto 2003
Stone 2005

39
Q

What are the two elements of the Lucas Direction?

A

Lie must be admitted or proven beyond a resonable doubt
Jury must be sure the lie was not because of some inncoent reason before they consider it in support for the prosecution case

40
Q

Which three cases show application of the Lucas Direction?

A

R v Burge and Pegg 1996
R v Jefford 2003
R v Nash 2004

41
Q

What are the four categories of vulnerbale and intimitdated witnesses?

A

Under 18
Having mental
Or physical impairmet
Fear or distress due to the act or testifying

42
Q

What are the requirement for category 4 vulnerable vitnesses?

A

Consideration of a range of contextual factors including e.g alleged circumstances, domestic situation
Complaints of a secual case automatically falls to number 4 (s17)

43
Q

What ,measures could be introduced to ease vulnerable or intimidated witnesses?

A

Screens in courts
Live links
Communication aids
No gowns or wigs

44
Q

Where would you find the four categories of vulnerable and intimidated witnesses?

A

S16 Youth Justice and Criminal Evidence Act 1999

English Criminal Law And Evidence (13 decks)

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