J.F Evidence 2 Flashcards
What are four reasons that evidence rebuttal can be recalled?
F - Formal matter: Relates to a purely formal matter.
R - Relevance unforeseen: Relates to a matter arising out of the conduct of the defence, where the relevance couldn’t reasonably have been foreseen (the most common ground for leave to be granted).
A - Admissibility: The evidence was not available or admissible before the prosecution’s case was closed.
N - Necessary for justice: It is required to be admitted in the interests of justice for any other reason.
What are four types of questions that the judge can state are unacceptable?
Improper
Unfair
Misleading
Needlessly repetitive
Expressed in language that is too complicated for the witness to understand.
Define corroboration and list two offences which corroboration is required by the prosecution?
Independent evidence that confirms or support some fact of other evidence. It implicates the defendant in the crime charged.
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
Explain the an 11 year old’s parents what the judge will expect of them in terms of oath and affirmation?
(Promise to tell the truth)
Explain two ways of giving evidence?
Ordinary way - orally in court room or affidavit written for court
Alternative way - behind screen, video link, video previously made
What is the purpose of cross examination?
- to elicit information supporting the case of the party conducting the cross-examination
- to challenge the accuracy of the testimony given in evidence-in-chief
If a witness has memory loss, citing legislation can they be called hostile?
- A Witness who fails to come up to brief may have memory loss, but that doesn’t mean they are hostile.
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*Just because a witness gives evidence against a party, forgets details, or provides inconsistent statements, it doesn’t automatically mean the witness is hostile
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Witnesses who fail to come up to brief maybe suffering memory loss but they are not necessarily hostile.
This indicates that the simple fact that a witness gives evidence adverse to a party, suffers a loss of memory, or provides evidence inconsistent with another statement does not, by itself, justify finding the witness is hostile.
What are the four principles of evidence law?
Relevance
Reliability
Unfairness
Public Interest
What was found in R v Wanhalla in relation to reasonable doubt?
If after careful and impartial consideration of all the evidence, you are sure the accused is guilty you must find him or her guilty.
Explain the term “Facts that prove the charge”?
The facts must prove the elements of the charge,
and
The evidence should be made up of facts that prove the charge.
Define “Presumption of fact” and give an example?
Presumptions of fact are those that the mind naturally and logically draws from the given facts. For example, one presumes that a person has guilty knowledge if they have possession of recently stolen goods.
Define “Hearsay statement”?
- This refers to a statement made by someone who is not testifying, used in court to prove its truth.
- Out-of-court statements by a witness are not excluded by the hearsay rule because the witness can be cross-examined. However, these statements could still be excluded under another rule.
- If a statement is used for a purpose other than proving its truth, such as just showing it was made, it is not considered hearsay.
This is a statement that was made by a person other than a witness, and is offered in evidence in the proceeding to prove the truth of its contents.
This definition means that out-of-court statements made by a “witness” are not excluded by the hearsay rule because the maker is available to be cross-examined. Such statements may still be excluded by a different rule.
A statement offered for some purpose other than proving the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement.
What is the Judge’s role in trial by Jury?
- Decide all questions concerning the admissibility of evidence
- Instruct the jury on the rules of law by and how to evaluate the evidence and the weight it holds.
- Explain and enforce the principles of law.
What is Voir Dire?
- Evidence provided by a witness to determine whether other evidence should be allowed in a case. This type of hearing is known as a “voir dire.” Section 15 of the Evidence Act 2006
What are two alternate ways of giving evidence?
Behind screen, video link, previously made video.
What are four of the six purposes of evidential law?
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
What does propensity evidence include?
Propensity evidence is concerned withwhether a particular person has a tendency to act in a particular way or have a particular state of mind(eg a lack of inhibition, a love of violence). Evidence of past behaviour may be relevant in determining whether the person behaved in the same way in the instant case.
What are four examples of privilege and the definition?
A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
- communications with legal advisors – section 54
- solicitors’ trust accounts – section 55
- preparatory materials for proceedings – section 56
- settlement negotiations or mediation – section 57
- communications with ministers of religion – section 58
- information obtained by medical practitioners and clinical psychologists – section 59.
- privilege against self-incrimination – section 60
- informer privilege – section 64.
What is the definition of “leading question” and what is the general rule?
One that directly or indirectly suggests a particular answer to the question.
Leading questions may not be asked during evidence in chief or re-examination.
What is the definition of “hostile witness”?
- exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
- gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
- refuses to answer questions or deliberately withholds evidence.
