J.F Evidence 5 Flashcards
If a hostile witness application is granted, the witness may be asked question that include?
Asking leading questions
Asking questions designed to probe the accuracy of memory and perception
Asking questions as to prior inconsistency statements and
Other challenges to veracity, including evidence from other witnesses
Explain what is meant by “burden of proof?
Whoever asserts something must prove it
In criminal cases the burden of proof is on the Crown, ie the prosecutor must prove the accused guilty rather that the accused person prove their innocence. All that a defendant needs to do is to raise a doubt as to their guilt.
In a criminal case the prosecution must prove every essential ingredient of the offence beyond a reasonable doubt.
In relation to the reliability of hearsay statements, briefly outline the four reasons why hearsay evidence is generally excluded?
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.
The rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanor 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 reason for the rule’s existence is therefore 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) A leading question suggests the desired answer or assumes that disputed facts exist
(b) (any two of the following):
* Introductory or disputed facts
* Identification
* Assisting memory
* Contradiction
* Hostile witnesses
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 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 two exceptions to the general prohibition on previous consistent statement (Section 35 of the Evidence Act 2006)?
- To respond to a challenge 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
Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings?
- The evidence concerns the complainant’s sexual experiences with someone other than the defendant.
- The evidence relates directly or indirectly to the complainant’s sexual reputation.
What are two types of questions that can be asked once a witness has been declared hostile?
(any two of):
- Asked leading questions
- Challenged with regard to how they know the facts about what they are testifying
- Tested on such matters as to their accuracy of memory and perception.
Where the onus falls on the defence to prove a particular element, the standard of proof required is?
on the balance of probabilities
Circumstantial evidence has been defined as?
- A fact that can suggest or support another fact or issue.
- Example an offender in the vicinity of a crime scene at the time of the offence.
Once the judge has granted an application to treat a witness as hostile, that witness may be:
- asked leading questions
- questions as to prior inconsistent statements
- tested on such matters as the accuracy of his/her memory and perception
What is the meaning of veracity?
a tendency
to refrain from lying
- The general purpose of the examination-in-chief is to?
Elicit testimony that supports the case of the party calling that witness
Corroboration of a complainants statement is not necessary in a criminal proceeding except for the
following offence?
false oaths
A witness is eligible to give evidence if?
they are lawfully able to give evidence on behalf of both prosecution and defence
Which is not an example where judicial notice can be taken?
the date of birth of a complainant under 16
An oath and affirmation may be taken by?
any witness 12 years and over involved in a proceeding
Where an expert is called to give specialized evidence?
the expert must demonstrate to the court that he/she has the qualifications to be deemed an expert
Before giving evidence in court, witnesses may refresh their memory from?
a. Their original statement
b. Their deposition
c. Either of the above (this one)
d. None of the above
Which of these statements is correct regarding the eligibility and compellability of a witness in a proceeding?
Any person who is eligible to give evidence is compellable
