The course of Evidence Flashcards
Features of an adversarial justice system
- The facts of the case, and evidence relevant to the determination of those facts, emerge by means of questions put by prosecution or defence to witnesses called by them.
- It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they should be asked.
- Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.
- During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
- Neither the judge nor the jury is generally entitled to go beyond the evidence presented by the parties and call witnesses or pursue inquiries of their own. The judge may require the prosecution to call a witness who has not been called, but this right is exercised only rarely, and although the judge has the right to recall witnesses where necessary in the interests of justice, it is exercised only in exceptional cases.
- By the same token, the judge should only ask questions of witnesses when, in the opinion of the judge, justice requires it. This will usually be for the purpose of clarification or the elimination of irrelevancy. Judges must be careful not to “descend into the arena” by asking questions which go beyond the points and issues being advanced by the parties themselves. Jurors must submit any questions they have during the proceeding to the judge, who will determine whether and how it will be put to the witness.
- The defendant does not have to give evidence or to do anything to assist the prosecution in the presentation of its case; he or she may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
- Facts may be judicially noticed where they are known and accepted and so cannot reasonably be questioned, or where the facts are capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned. Judicially noticed facts do not need to be proved. In addition, a judge may admit as evidence any published documents that are deemed to be reliable sources of information in matters of public history, literature, science or art.
What must witnesses under the age of 12 do for an oath?
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.
What are the steps in the examination of witnesses?
(a) a witness first gives evidence in chief; and
(b) after giving evidence in chief, the witness may be cross-examined by all parties, other than the party calling the witness, who wish to do so; and
(c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.
Sequence of a jury trial
- After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions.
- The Crown then makes an opening address, in which the prosecutor will provide a detailed explanation of the charge or charges.
- Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness to clarify or qualify any matter which was raised during the cross-examination (“re-examination”). The judge may ask a witness any question that, in the judge’s opinion, is required in the interests of justice (s100 Evidence Act 2006).
- If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury. In some cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In others, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case.
- The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and re-examination as set out above.
- The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
- Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
- Finally, the judge sums up to the jury before it retires to consider its verdict.
What are the different trial categories?
four categories of offence: judge alone trials for Category 1 and 2 offences (not punishable by imprisonment, or punishable by a maximum of less than 2 years’ imprisonment respectively); judge alone trials but with the ability for election of trial by jury for Category 3 offences (punishable by two years’ imprisonment or more); and Category 4 offences, which a limited list of offences in schedule 1 of the Act that are tried by a High Court jury unless a judge alone trial is ordered in long and complex cases/ cases involving issues of juror intimidation).
What is a “View”?
A “view” is an inspection of a place or thing that is not in the courtroom (for example, an inspection of a scene or building where the alleged offending took place).
Who can comment on a defendant using their right to silence?
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 Evidence in chief
The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.
Evidence must usually be given orally by a witness after he or she has taken the oath or affirmation
what are leading questions?
The Evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4).
There is no comprehensive test for whether a question is leading, but examples include questions that seek a “yes or no” answer (for example, when a witness gives evidence of an assault, by asking “He hit you straight after dinner, didn’t he?”). Much will depend on what fact is in issue and what questions have already been asked.
Why are leading question prohibited?
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 are leading questions allowed?
89 Leading questions in examination in chief and re-examination
(1) In any proceeding, a leading question must not be put to a witness in examination in chief or re-examination unless—
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question.
(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.
What circumstances are leading questions allowed?
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.
When can a witness use a document to refresh memory?
- the leave of the judge must be obtained
- the document must be shown to every other party in the proceeding
- s90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”. Whether a document was made while the memory was fresh depends on the circumstances of the individual case. In Cameron v R30, the Court stated that there is a non-exhaustive set of factors that can be considered, including the significance of the events to the witness; the time elapsed between the events and the making or adoption of the document; evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document.
Can witnesses refresh memory out of court?
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 may have made some months before, or they may check their recollection of events with the officer who interviewed them, and so forth. The documents which the witness uses to refresh his or her memory may have been made by either the witness or by someone else; the requirement is simply that the document relates to matters which are within the witness’s own knowledge
Are previous consistent statements allowed?
Previous consistent statements are generally inadmissible. This is because, while mere repetition of an allegation does not increase its truthfulness, the fact that it is repeated and heard on several occasions will give it greater impact, and if put to the jury there is a danger that it will be accorded more weight than it warrants. The intention of the rule is therefore to prevent the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness’s consistency.
