The Course of Evidence Flashcards
What is a judges role in a jury trial?
- decide all questions regarding admissibility of evidence
- explain and enforce the general principal of law
- instruct the jury on the rules of law which the evidence is to be weighed once it has been submitted
Features of a adversarial justice system
- facts of the case and the evidence that supports the case are determined by questions but by prosecution or defence to the witnesses
- up to each party to decide what witnesses to call, in which order and what to ask
- each party can cross examine the witness
- the judge is to ensure evidence is produced according to the rules
- defendant does not have to give evidence
- facts may be judicially noticed
What is the cut off age for making an oath/affirmation before giving evidence
12 or older is affirmation
under 12 the judge tells the importance of telling the truth and not telling lies. Then making a promise to tell the truth before giving evidence
Can anyone give evidence without giving an oath, affirmation or promise?
Yes they can, if the judge grants that then they must promise to tell the truth and not telling lies before giving evidence. This can be done to adults with intellectual disability or where a child witness is unable to promise to tell the truth
Why would defense call a witness immediately after a prosecution witness
To assist the jury in building up a ‘story’ and how evidence fits together
Sequence of jury trials
1) Jury selected, judge gives an opening and reminds jury of keeping an open mind, burden and standard of proof
2) Crown opening, explains the charges, burden of proof, makes a summary of the case and evidence the crown wishes to call
3) Crown presents witnesses, cross examination and re-examination. Judge may also ask questions
4) Defence opening - roles of jury, burden
5) Defence presents witnesses, cross examine and re-examine
6) Crown closing - summaries the case, no new info may be introduced
7) Defence closing - summary
8) Judge summary
9) Jury retires and verdict
Does defence have to call any evidence?
No
What is category 1,2,3,4 offences
1 - no imprisonment; JAT ONLY
2 - less than 2 years imprisonment; JAT ONLY
3 - 2 year more more imprisonment; JAT or JURY
4 - High court unless JAT is ordered due to complexity or risk of jury intimidation
What is a ‘view’ during a trial
An inspection of a place or thing that is outside the courtroom. For example a scene or building where offending occurred.
Information obtained at a ‘view’ may be used as if it’s been given as evidence
Who may comment on the defendants not giving evidence
Only the defendant, counsel and judge.
What may the judge sat about the Defendant not giving evidence
That the proof still remains with the crown and the jury should not think the defendant is guilty just because they didn’t give evidence, respond to statements to disclose a defence before trial.
What is a leading question
One that directly or indirectly suggests a particular answer to the question
What are the three reasons that lead to the prohibition of leading questions
- natural tendency for people to agree with suggestions put to them by saying yes
- counsel asking leading questions may elicit the answers they receive, thereby reducing the spontaneity and genuineness of the testimony
- danger that leading questions will result in the manipulation or construction of evidence through collusion, conscious or otherwise between the counsel and the witness
What is the goal of evidence in chief and re-examination?
Draw out the witnesses own recollection and to permit the ‘trier of fact’ to judge the witnesses testimony
When are leading questions permitted?
- relates to introductory or undisputed matters
- question put with consent of both parties
- judge allows the question
Three examples of allowing leading questions
1) direct witness’s attention to the subject ID evidence. eg - Was that the car you saw?
2) Questions around surrounding circumstances to jog a witness’s memory, as long as the answer to the central question is not provided
3) Hostile witness
4) Very young people, difficulty in english or limited intelligence. Though there might be better means such as alternative methods or having a support person
What are the two set of rules witness’s can refresh their memory
1) written documentation in court
2) refreshment of memory outside court
What is refreshing memory in court and what are the conditions of doing so
When the witness refers to a document made at the time of the incident or shortly after.
Conditions
- leave from judge must be obtained
- document must be shown to all parties
- the document to be made at the time when his or her memory was fresh. Fresh depends on the circumstances, time lapsed and how significant the event was
Who must make the document for refreshing memory in court
The witness themselves or a person on the witness’s behalf and by their agreement
What is refreshing memory outside of court
Witness’s being refresh by statements, briefs of evidence, OC who interviewed them etc. Any document made by either the witness or someone else, as long as it’s within the witness’s knowledge.
What is a hostile witness
1) Witness exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter where the witness may reasonable be suppose to have knowledge of
2) gives evidence that is inconsistent with statements made by that witness
3) refuses to answer questions or deliberately withhold evidence
What can the prosecutor ask once witness is deemed hostile
- asking leading questions
- ask questions to probe memory and accuracy
- ask questions to prior inconsistent statements
- other challenges to do with veracity
What is the previous consistent statements rule
A previous statement of a witness that is consistent with the witnesses’s evidence is not admissible unless:
- responding to challenges of the witness’s veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of invention on the part of the witness
- forms an integral party of the events before the court
- consists of the mere fact that a complaint has been made in a criminal case
How many previous consistent statements will the judge make
Only as much as necessary to respond to the challenges of accuracy and veracity so that it prevents the potential for the statement to offer more weight than it is
Is a witness who fails to come up to brief be deemed a hostile witness
No - not necessarily, even if the witness suffers memory loss or provides evidence inconsistent to statement provides is not necessarily hostile
What are the two purposes of cross examination
1) to elicit information supporting the case
2) to challenge the accuracy of the evidence given in chief - by casting doubt of witnesses veracity or eliciting contradicting evidence
Who has the right to cross examine a witness
All parties except for the ones calling the witness
What type of questioning fall under unacceptable questioning
- improper
- unfair
- misleading
- needlessly repetitive
- expressed in a language that is too complicated
What does the judge take into account for unacceptable questioning
- age/maturity of witness
- physical or psychological impairment
- cultural or religious background
- nature of proceeding
- in a hypothetical question, has/will the hypothesis be proved
Can a witness be re-examined after being cross examined by counsel
Yes, and the party who called for this witness can re-examine the witness for clarification and work on any issues during the cross examination.
If new information comes to light, then counsel may cross examine this
When four things can leave be given for the rebuttal of evidence
- relates to a formal matter
- relates to the conduct of defence
- was not available or admissible before the prosecution’s case was closed
- required to be admitted in the interests of justice for any other reason
When may a judge warn a jury about evidence should be scrutinised with care or given less weight
Section 122 - 127
- Evidence may be unreliable
- Certain ways of giving evidence
- Warning about lies
- Children’s evidence
- ID evidence
- Delayed complaints or failure to complain in sexual cases
Section 122 - evidence may be unreliable
(judicial directions and warnings)
- hearsay evidence
- statement of the defendant if that’s the only evidence
- evidence given by a witness who may have a motive to give false evidence
- evidence of a statement by the defendant of other person obtained when they were in prison, police station or another place of detention
- evidence of the conduct of the person if that conduct was more than 10 year ago
Section 125 - children’s evidence
(judicial directions and warnings)
Treat it as no difference to adult evidence, therefore it prohibits:
- the judge from giving warnings about the absence of corroboration where a warning would not have been given if it was an adult complainant
- any direction or comment that there is a need to scrutinise children’s evidence with special care or that they tend to distort or invent
