Study Notes Flashcards
What is a leading question?
Give two exceptions to the general rule concerning leading questions/
A leading question suggest the desired answer or assumes that disputed facts exist.
Any two of the following:
- Introductory or disputed facts.
- Identification
- Assisting memory
- Contradiction
- Hostile witness.
Define the following term:
Direct evidence?
Admissible evidence?
Direct Evidence
Any evidence by a witness as to a fact in issue which he or she has sen, heard or otherwise experienced.
Admissible evidence is admissibly if it is legally able to be received by a court.
What is the rationale behind the general exclusionary rule of propensity evidence whereby an opinion is not admissible except as provided by s24 and 25 of the Evidence Act 2006?
- 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, 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 other evidence which if stated expressly would be inadmissible, for example where an opinion is largely based on propensity.
Describe what privilege is in relation to the giving of evidence?
Give two examples?
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.
- Privilege for communications with legal advisors.
- Privilege and solicitors trust accounts.
- Privilege for preparatory material for proceedings,
- Privilege for settlement negotiations or mediation.
- Privilege for communication with ministers of religion.
- Privilege for information obtained by medical practitioners and clinical psychologists.
- Privilege against self incrimination.
- Informer privilege.
Why are leading questions generally not permitted?
- There is a 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.
- 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.
Functions of the judge in a jury trial?
- To decide all questions concerning the admissibility of evidence.
- To determine whether there is any evidence that is fit to be submitted to the jury for its consideration.
- To explain and enforce the general principles of law that are applicable to the point at issue.
- To instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
Give reasons why hearsay evidence is generally excluded?
- Where the make 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 he person who made the statement in questions.
- There is a danger that witnesses will make mistakes about the meaning or content of the statement made by other people.
- The reason for the rules 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.
When is a witness unavailable according to s16 Evidence Act 2006/
- Dead
- Outside of NZ and is not reasonably practicable for him or her to be a witness.
- Unfit due to age, mental or physical condition.
- Cannot with reasonable diligence be identified or found.
- Is not compellable to give evidence.
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 topics of cross-examination must deal with significant matters in the proceedings.
- The matters must be relevant and in issue int he proceeding.
- The matter must contradict the evidence of the witness.
- The witness mat 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, s35 EA06.
A previous statement of a witness that is consistent with the witnesses evidence is admissible to the extent that the statement is necessary:
- To respond to a challenge to the witnesses veracity or accuracy, based on previous inconsistent statement of the witness, or.
- On a claim of recent invention of the part of the witness.
In relation to non expert evidence the statement of opinion must fulfil a basic criteria, name them?
In order to admissible under s24 the statement of opinion must fulfill 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 from something personally experienced.
Name the exceptions to the veracity and propensity rule that do not apply to bail or sentencing hearings?
The veracity and propensity rules 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 than the defendant.
-The evidence relates directly or indirectly to his or her reputation in sexual matters.
