The course of evidence Flashcards
*What is the judges role in a jury trial?
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When a judge is presiding over a trial by jury, he or she must:
• decide all questions concerning the admissibility of evidence
• explain and enforce the general principles of law applying to the point at issue
• instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
Determine whether there is any evidence that is fit to be submitted to the jury for its consideration
*Who gives oaths and affirmations?
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s77). Witnesses under the age of 12 must:
• be informed by the judge of the importance of telling the truth and not telling lies, and
• after being given that information, make a promise to tell the truth, before giving evidence.
With the judge’s permission, a witness of any age may give evidence without taking an oath, making an affirmation or a promise to tell the truth.
*Sequence of jury trials
1-8
- jury has been empanelled and a foreperson selected
- Crown then makes an opening address
- the case for the Crown is then presented.
- defence intends to call evidence, it will open its case
- defence then presents its case
- Crown then concludes by making a closing address
- defence makes a closing address
- judge sums up to the jury before it retires to consider its verdict
*What are the restrictions on comments on the defendant’s right of silence at trial
Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
*What is the purpose of evidence in chief?
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The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.
- Explain and define leading questions
- Why are leading questions prohibited?
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Yes/El RdSp&Gn/Man Col CO
The general rule is that leading questions may not be asked during evidence in chief or re-examination (s89).
The EA 06 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4).
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:
• There is a natural 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 of what happened.
• 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.
- When will leading questions likely be allowed?
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It is likely that leading questions may be allowed under s89(1)(c) in the following circumstances:
• To direct the witness’s attention to the subject of identification evidence (for example, “Was that the car you saw?”).
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
• To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence. If allowed, the judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in an alternative way or providing a support person are better ways of addressing the problems of eliciting evidence from young or vulnerable witnesses.
• Where the witness has been declared hostile.
*Explain refreshing memory in court and out of court
While giving evidence a witness may consult a document made at the time when his memory was fresh.
Seek leave. Document must be shown to every party. Must be made at a time his memory was fresh.
Witnesses may, before they give evidence in court, refresh their memory by reference to statements, briefs of evidence, or a deposition statement prepared on the basis of statements which they have made or may check their recollection with of events with the interviewing officer. Documents must relate to matters within the witnesses own knowledge
** Explain previous consistent statements rule
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35 Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement—
(a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case
The general rule is that a witness cannot give evidence about statements made before the trial that are consistent with the evidence given at the trial unless the exceptions contained in s35(2) apply.
*What are the exceptions to the previous consistent statements rule?
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The judge will admit only as many previous consistent statements as is “necessary” to respond to the challenge to accuracy or veracity, thereby preventing multiple repetitive statements, which would undermine the general rule, being admitted.
Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence” (s7) and therefore, will be admissible as evidence of its truth as well as of the fact that it was made.
Section 35(2) sets out three exceptions to the general prohibition on previous consistent statements: • A previous consistent statement will only be admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, integral to the matters before the Court or the mere fact a complaint was made. Any suggestion in cross-examination that the witness is lying or mistaken should be sufficient. These challenges must be based on either a previous inconsistent statement or a claim of recent invention.
** If witness is declared hostile, the witness may be asked what?
L PAM&P PIS ChV
However, if the witness displays active hostility towards the party that has called him or her, leave may be sought from the judge to declare that witness a “hostile witness”. If the application is granted, the witness may be asked questions in the manner of a cross-examination to the extent that the judge considers necessary for the purposes of doing justice (s94). This may include:
• asking leading questions
• asking questions designed to probe the accuracy of memory and perception
• asking questions as to prior inconsistent statements, and
• other challenges to veracity, including evidence from other witnesses (provided that any evidence offered is “substantially helpful” in assessing the witness’s veracity).
- Define hostile witness
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S4 EA 06. In relation to a witness, means the 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.
Whether the witness is hostile in one of these ways is a question of law for the Judge, on application from a party in the proceeding.
** What are the two purposes of cross-examination
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There are two purposes 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 (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).
- When will the duty to cross-examine arise?
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The duty to cross-examine will therefore arise under the Act when:
• the cross-examination deals with “significant matters” in the proceeding, and
• the matters are “relevant” and “in issue” in the proceeding, and
• the matters “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 unacceptable questions?
I/U/M/N/L
85 Unacceptable questions
(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
