Evidence: Witnesses Flashcards
How is elegibility to testify two-fold?
Compellability
Competence
What is meant by compellability?
Legal Obligation to give evidence if called upon
Which two cases show who can testify as a witness?
R v MacPherson [2005] EWCA Crim 3605
R v Powell [2006] EWCA Crim 3
How is a witness said to be competent?
If the court may lawfully receive his evidence
How is a witness said to be compellable?
If the court can require him to give evidence even if he does not want to
What is the basic principle of elegibility to testify?
Any person is competent
What are the exeptions to being able to testfy?
D cannot testify for the prosecution unless they are not in proeedings
Witnesses who cannot give intelligible evidence cannot testify
What is perjury?
Lying while under oath, and similar offences where witness believes their statement to be false
Witness who cannot give intelligible evidence can testify.
False
What does the party calling a witness must establish competence on?
The balance of probability
Which party is the burden on when calling a witness?
The party calling the witness
What does the party calling a witness must establish competence on?
The balance of probability
What does voire dire mean?
A trial within a trial
Can a witness be compelled to testify?
Generally yes
A judge can order a summons however they dont have to
Who can retain discretion regarding compellability?
The person who is being compeleld as a witness
However court has discretion about whether to order the attendance of a particular witness
Which act gives the accused competence?
Criminal Evidence ACt 1898
Historically who could not be a witness?
The accused as they were belived that they would lie
What is the procedure of an accused if a witness?
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
What is meant by adverse inferences?
Not testifying can show bad character - make judgements essentially
What are the exceptions of adverse inferences?
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
Which act shows it is not contempt for D not to appear as a defence witness?
s35(4) Criminal Jusice and Public Order Act 1994
Pleading diminshed responsibility automatically bars adverse inferences?
False
What does s35 of the Criminal Justice and Public order act 1994 contain?
Not appearing in court can is not being in contempt for d not to appear but adverse inferences may be drawn
‘As appear proper’
What does s35 of the Criminal Justice and Public order act 1994 not contain?
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
Which relations cannot generally be compelled as a witness?
D’s sopuse of crivil partner
What are the exceptions to the general rule of compellability to witnesses with relations to the accused?
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
Spouses or partners can become vulnerable as a witness against D.
True
What does the case Warren v Warren [1996] show?
The soverign cannot be compelled as a witness
True or False the soverign is a compellable witness?
False
When can judges be compelled to evidence things they have witnessed in a judicial capacity?
For collateral matters
Otherwise a judge cannot be compelled
What does corroboration mean?
Evidence that connects D to the crime, independent of the witness
What is the general principle of corroboration?
Corroboration is not required to secure a conviction
What are the exceptions/ discretions regarding corroboration?
Speeding (s89(1) Road Traffic act 1984: cant be convicted just on eye witness
Complainents in sexual offence cases
Cell confessions
What does s32(1) of the criminal justice and public order act 1994 state?
Abolished the requirement for judges to warn about uncorroborated statements from complainants
Regarding sexual offences what are the issues of corroboration?
Putting a witness through it to retell
Many judges still require corroboration
Misconceptions of rape and myths
What is a cell confession?
Where one prisoner testifeis that another prisoner confessed while in prision
What is the general principle of a cell confession?
Treat with utmost caution
Which two cases contain cell confessions?
Bendetto 2003
Stone 2005
What are the two elements of the Lucas Direction?
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
Which three cases show application of the Lucas Direction?
R v Burge and Pegg 1996
R v Jefford 2003
R v Nash 2004
What are the four categories of vulnerbale and intimitdated witnesses?
Under 18
Having mental
Or physical impairmet
Fear or distress due to the act or testifying
What are the requirement for category 4 vulnerable vitnesses?
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)
What ,measures could be introduced to ease vulnerable or intimidated witnesses?
Screens in courts
Live links
Communication aids
No gowns or wigs
Where would you find the four categories of vulnerable and intimidated witnesses?
S16 Youth Justice and Criminal Evidence Act 1999
