Testimony Flashcards
4 Things to verify when a witness is summons to court; Or….Before a person is summoned to appear in court verification must be made as to… list four things.
- Whether they are allowed to give evidence.
- Whether they are required to give evidence.
- Whether they can refuse to give evidence
- What type of witness they will be?
When is a witness eligible and compellable to give evidence
- A witness is eligible if they are lawfully able to give evidence on behalf of prosecution and defense.
- A witness is compellable if they can be required to give evidence against their will for both prosecution and defense.
- If a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.
71 Eligibility and compellability generally. What does S71(1) say about eligibility and compellability
- In a criminal or civil proceeding
o any person is eligible to give evidence
o A person who is eligible to give evidence is compellable to give that evidence.
Which of these statements is correct regarding eligibility and compellability of a witness in a proceeding?
Any person who is eligible to give evidence is compellable
S73 - Compellability of defendants and associated defendants in criminal proceedings
- A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defense in that proceeding.
- An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless:
o The associated defendant is being tried separately from the defendant
o The proceeding against the associated defendant has been determined.
What is an Associated Defendant? s73(4)
- An associated defendant is someone against whom a prosecution has been initiated for an offence
o Arising out of the same events as the offence for which the defendant is being tried, or
o That relates to, or is connected with, the offence for which the defendant being tried
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply, state these two situations. (S. 73 EA06)
- The associated defendant is being tried separately from the defendant.
- The proceeding against the defendant has been determined.
A witness can be required to give evidence if
They are lawfully able to give evidence on behalf of both prosecution and defense
What are examples of privileges where a person cannot be compelled to give certain evidence to a court proceeding?
- A privilege is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
o Communication with legal advisors
o Communication with minister of religion
o Solicitor’s trust account
o Settlement negotiations or mediations
o Preparatory materials for proceedings.
o Privilege against self-incrimination
o Information obtained by medical practitioners and clinical psychologist.
o Informer privilege
Limited privilege protecting information obtained by medical practitioners and clinical psychologists is allowed for under s59 of the Evidence Act 2006. To whom does this apply and to whom does this not apply under S59(1)?
- Applies to a person who consults or is examined by the medical practitioner or clinical psychologist for drug dependency, or other condition or behavior that may manifest itself in criminal conduct
- Does not apply to a person who has been required by an order of a Judge, or by other lawful authority, to submit themselves to the medical practitioner or clinical psychologist for any examination, test, or any other purpose.
In relation to privilege of medical practitioners “protected communication” refers to communication made by the patient to the doctor for him/her to examine, treat or act for the patient:
1. Who is suffering from drug dependency
2. Who has another condition or behavior that may manifests itself in criminal conduct
3. Who has provided information concerning their family
4. Who s suffering from a mental illness
d. 1 and 2 are correct
What is required for communication with a legal adviser be privileged?
- The communication must be intended to be confidential.
- The communication must be made for the purposes of obtaining or giving legal advice. Includes communication for the same purpose made through authorized representatives
- The privilege is vested with the person seeking legal services; however, it can be waivered.
What are the privileges in regard to preparing for a proceeding
- The privilege applies to communication or information made, received, complied or prepared for the primary purpose of preparing for a proceeding or a future proceeding
- The privilege applies to a person if they are, or on reasonable ground contemplating becoming, a party to the proceedings or apprehended proceedings
What is the meaning of self-incrimination under S.4 EA06
- The provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.
When is privilege granted in relation to Privilege against self-incrimination
- The privilege applies if a person is required to provide specific information:
o In the course of the proceeding, or
o By a person exercising a statutory power or duty, or
o By a police officer or other person holding a public office in the course of an investigation into a criminal offence, and - The information would be likely to incriminate the person under NZ law if so provided
